*1 McDougald. 120 N.J. State v. as, Cite 120N.J. 523 WILENTZ, For reversal and remandment—Chief Justice HANDLER, O’HERN, and Justices GARIBALDI and STEIN—5.
For CLIFFORD and POLLOCK—2. affirmance—Justices
Argued July January Decided 1990. *5 Deputy Assistant Boyer Wyk, Tina R. Claudia Van appellant Defenders, argued (Alfred A. cause Public Slocum, Defender, Boyer, R. attorney; Tina Claudia Public Friedman, Deputy Public Wyk, and Assistant Mark H. Van Defender, briefs). on the General, Stevens, Deputy Attorney ar-
Marijean Raffetto Jr., (Peter Perretti, Attorney respondent gued the cause for N. Jersey, attorney). of New General opinion delivered of the Court was GARIBALDI, J. by jury
Defendant, McDougald, convicted Anthony wife, Bass, and his Maria Bass the brutal murders Walter directly this as of appeals Court to death. He and sentenced convictions for 2:2-1(a)(3). affirm defendant’s We right. R. however, murder. penalty, We set aside the death based on an *6 charge 2C:11-3c(4)(c), erroneous regarding N.J.S.A. and remand the matter to the trial court for sentencing proceeding. a new
I. FACTS
Anthony McDougald trial, pursuant faced to a thirteen-count indictment, for Bass, the murders of Walter Bass and Maria and related crimes. McDougald guilty The found on all counts, and sentenced him McDougald to death. does not dispute participation Following his in the murders. is an ac- essentially undisputed count of the surrounding facts this case. Preceding
A. Events the Murders Walter and Maria Bass resided in Newark with Maria’s daughter stepdaughter, natural and Walter’s Antoinette James. family The first met Anthony McDougald and befriended some- time between 1982 and 1983 at the home of their then-down- neighbor friend, Euggey. stairs and mutual family Arlene The friendly relationship McDougald continued its with even after it early moved to Bedford Street in Newark in the months of romantically 1984. McDoug- Antoinette became involved with shortly ald years age, thereafter. Antoinette was thirteen McDougald twenty-seven. They began having was sexual February relations in of 1984. time,
During McDougald living apartment this was in an 69 Somerset Street in Newark with Bernice Simmons. He had 1983, in January apparently married Bernice without first addition, having prior McDougald divorced his wife. In was romantically Marilyn also involved with woman named Ho- ward, through Euggey. During whom he also had met Arlene early away months of defendant was often from home explained drinking on weekends. He to Bernice that he was during the Basses these with absences. April Antoinette James informed her mother and
McDougald pregnant McDoug- that she she was with believed ¿¡hild. subsequent pregnancy proved nega- test ald’s When tive, her mistake. too embarrassed admit Antoinette was Instead, MeDougald abortion. She she had an she told Presumably Bass- gave parents any explanation. her never she that until the date of their deaths es continued believe pregnant. was turned relationship between defendant the Basses they MeDougald having sexual
hostile once discovered daughter. daughter her their Mrs. Bass forbade relations with Nevertheless, her seeing MeDougald. from Antoinette defied relationship MeDougald. her mother and continued sexual with MeDougald filing apparently then threatened Maria Bass telling charges against responded by He statutory-rape him. “get” parents way “one other.” he her Antoinette would possibility of regarding Defendant indicated concern *7 rape charges against persons him to two filing the Basses May In he told during spring early and summer. baby pregnant was with his Bernice Simmons that Antoinette charges against press had and that “the Basses threatened Howard, statutory some- rape.” Marilyn him for He also told July, pressed charges during that Maria Bass had time June or her having engaged for in sexual relations with against him daughter. gave prematurely to the May
In Bernice Simmons birth child, MeDougald boy. very was atten- couple’s Apparently purchased hospital frequently, child. He visited the tive to the baby, phone and acted as a reliable contact supplies for hospital. and the There altercations between defendant were several On such during spring early summer. two Basses that late police. evening of June called the On the occasions Maria Bass 10th, home to see Antoinette. defendant went Basses' in, him kicked in the front door. they refused to allow he When respond- Moore police, Henry and Officer Maria Bass called left, By but the officer took this time defendant ed. from Maria Bass. report on the incident 17, 1984, evening granted On the of June Maria Bass Antoin- permission go McDougald, ette out to the movies with movie, instructing p.m. her to home 10:30 After the be McDougald engaged and Antoinette in sexual relations. An- did not return home until 2:30 a.m. After he took toinette Bass, home, Antomette defendant heard Mrs. from outside the again apartment, slap scold and Antoinette. He kicked Maria,, Walter, pushed front door. On this occasion he hit Again Antoinette to the home of her natural father. took police, Ralph Maria called the and this time Boswell Officer responded report. and took a incident,
After this last defendant arrived he home early morning in the shared with Bernice hours June 18th. morning, explained Later that he to Bernice that he had had a fight expressed anxiety press- with the Basses. He about their ing rape burglary charges against him. He told her he police looking believed that the were for him relation to the incident. July, McDougald’s baby discharged hospital.
In from McDougald him told Bernice took to South Carolina. She only visiting reality, Bernice had moved she was relatives. remaining perma- with the intention of there South Carolina severing relationship McDougald. nently, thus her
B. The Murders McDougald many was the source for of the details surround- virtually were ing the crimes. His statements and admissions *8 that culminated in uncontested at trial. The series of events August began evening on the 18th sometime the murders McDougald started a fire on his bed his 11:30o’clock. before purportedly wanted to obliterate the bad memo- apartment. He premises. McDougald was dis- ries he associated with the marriage He enlisted Miche- traught over his failed to Bernice. Williams, (“Kisha”) thirteen-year-old girl, whom he lene with involved, romantically help the bed. He apparently was burn her in the YMCA then called his mother at residence Newark Kisha, and, along having set the on fire. told her of bed with morning Later, on the of Au- approximately at 2:00 o’clock 19th, home gust and Kisha Williams arrived at the admission, MeDougald, Basses. his own was armed the may carrying a bat. with a knife and also have been baseball Although MeDougald bat in claimed to have found baseball home, family possess Antoinette testified that the did not MeDougald open the a bat. kicked front door and entered such couple Eug- sleeping was with Arlene the bedroom where watching. two-year-old they son gy’s whom were awakened Walter Bass and ordered him to come Defendant put pants, his requested the other room. Walter time to on into him to so. Defendant then but defendant refused to allow do was, responded truthfully and Walter asked where Antoinette staying night. The that she was at a cousin’s home that three bedroom, proceeded them into Antoinette’s where Mr. then they MeDougald repeatedly “why trying to hurt asked was why?”, [him], saying anything you” “I never to hurt and “I did help you.” sorry,” only responded tried to Walter Bass “I’m point, as which defendant described incident follows: cut across his throat with a knife and he told me: don’t.” “Tony, I then him holding I I I him in chest. his neck hand. Then Then stabbed my again I He fell on the floor. I told Kisha to think stabbed him two times. him. watch Bass proceeded into the bedroom where Maria Defendant back, however, him sleeping. the infant were Kisha called crawling begun from the back bedroom because Walter MeDougald Mr. claims to the kitchen. This is when toward apartment, which he used to “hit Walter found a have bat ** he fell head *. He was on knees and back Bass room, Returning to Maria’s defendant heard to the floor.” Bass, Mr. moaning, saying to “What Walter and heard Kisha Tony?” MeDougald then heard Kisha hit Walter you did do to more with the bat. three times *9 Kisha then went into the room standing where defendant was sleeping over the Maria baby. and the McDougald asked her if dead, Walter was and she affirmatively. McDougald answered claims that Kisha then help stated she “wanted to with Maria.” McDougald sent get Kisha back to the bat. He asked if her she sure was she wanted to participate, and then baby moved the away from the bed and instructed Kisha to hit Maria with the get bat. Maria up. moved to Defendant described his subse- quent actions: got I went and a cinderblock that was in the house and I hit her in the head again.
with it. Maria moved Then I hit her with the bat once. Then I took the knife out of Kisha’s hand and cut Maria’s throat. Defendant then sliced the wearing bra Maria Bass half knife, pulled with the her underpants ankle, down onto one inserted the bat approximately vagina, three inches into her saying, having “That’s for McDougald Antoinette.” and Kisha then left apartment. the Basses’
McDougald again. called his mother This time he informed her persons. that he had killed two He also asked her if he could forty get place borrow dollars stay. McDoug- Ms. ald told him to come over.
Kisha accompanied McDougald Williams Ms. YMCA. out, McDougald came group and the stoop sat on the of a nearby discussing night’s church McDougald events. con- firmed in his police statement to that he told his mother at that time that persons he wanted to kill three other They as well. (“because were Antoinette James my it was her fault wife took son”), my Simmons, and Jean Simmons and Charlie Bernice’s (“because sister and brother they my leaving talked wife into taking my son.”). me and leaving YMCA, As he was Marilyn Washington, defendant encountered neighbor friend of his mother. He her people told that he had killed two and asked her upset. to check on his mother because she was mother, leaving After Washington traveled Park, close to the morning YMCA. At 3:26 o’clockthat defen- phone dant park. made a call from the operator Betty AT & T *10 male, a to have received call from later confirmed Upchurch get “Operator, you McDougald, stated: had better who been Street, people there dead up there 14 are two someone Bedford interrupted, Ms. just Upchurch I killed there. them and—.” on,” McDougald police, with the Newark said “hold connected and hung up. Clerk answered and When Communications speaking he was to the to caller that now announced Police, go McDougald suggested that someone to Newark Street, there were two dead bodies and Bedford where people, baby. He he had the two healthy told him that killed McDoug- Walter and Maria Bass. and that their identities were hung up. ald then away in claims have thrown the knife a vacant
Defendant morning and to left bloodied lot sometime later that have his- attempted a friend’s home. Police searched the lot and shirt at shirt, neither item was ever recovered. to locate but Investigation
C. apart- partner Marvel went to the Basses’ Patrolmen and his response McDougald’s telephone call. When the ment arrived, they baby crying, the door heard a noticed that officers ajar, apartment, entered and the bodies of discovered Subsequently and and Maria Bass. Detectives Conti Walter Eutsey from the Unit With the assistance Homicide arrived. Police, the Smith from the officers secured Detective search, evidence, photo- collected premises, conducted a morning, graphed apartment and the bodies. Later that Eutsey phone neighbor played Detective the recorded call for a defendant, acquainted also with and Antoinette of the Basses McDoug- Anthony Both identified the voice as James. ald. during Eutsey the after-
Detective then went YMCA accompa- speak Shirley McDougald. 19th to She noon of the gave regarding police headquarters nied him to statement evening implicating her son. Later that Detective the incident Eutsey looking went to 69 Somerset Street for defendant premises. discovered that there had been a recent fire at the subsequently he Based information that received from an informant, August he arrested Kisha Williams on 20th. Eutsey police headquarters
Detective returned to with Kisha thereafter, Shortly Shirley Williams. he received a call from McDougald, reporting that her son would turn himself later, police. McDougald A short time in- defendant called. quired custody whether he Kisha was and stated that would police headquarters. McDougald young surrender at and a Eutsey woman the name of Ethel Lewis met Detective in the lobby police headquarters a short time later. He was then rights. advised of his Miranda After his mother arrived and her, spoken he McDougald expressed willingness some more, McDougald to make a statement. Once was advised of *11 rights. gave concerning He a statement the events of 19th, August which detailed Kisha’s and his involvement in the rayon pants wearing crimes. The red he was at the time of the previous night, interview were the same he worn the and were confiscated as evidence. History
D. Procedural Proceedings 1. Pretrial 19, 1984, September
On filed a indict State thirteen-count charging knowing purposeful ment defendant with: or conduct, by murders of Walter Bass and Maria Bass his own 2C:11-3a(1) (2) contrary II]; felony to or I and N.J.S.A. [counts contrary of murder Walter Bass and Maria Bass to N.J.S.A. IV]; degree III 2C:11-3a and two counts of second [counts 18, 1984, 19, 1984, burglary, August committed June and XIII]; contrary to V and unlawful N.J.S.A. 2C:18-2 [counts possession weapons possession weapons of and of for an unlaw (a bludgeon) contrary purpose ful knife and a to N.J.S.A. degree VII]; and VI and third 2C:39-5d 2C:39-4d [counts hindering prosecution apprehension contrary to or N.J.S.A. 2C:29-3b(2) (3) VIII]; degree attempted or second mur [count James, contrary to and der of Antoinette N.J.S.A. 2C:5-1 degree aggravated arson con IX]; second 2C:ll-3 S.A. [count (2) 2C:17-1a(1) X]; degree or second trary to N.J.S.A. [count James, contrary to upon assault Antoinette N.J.S.A. sexual 2C:14-2c(5) XI]; degree burglary, on June and third [count 1984, contrary to N.J.S.A. 2C:18-2 [count XII]. prove aggravat intent three served notice of its 2C:11-3c(4)(c),
ing that the murders of Walter factors: N.J.S.A. mind, torture, depravity “involved Bass and Maria Bass 2C:11-3c(4)(f), aggravated battery victim[s]”; an N.J.S.A. escape prose detection or that the murders were committed defendant; cution for other offenses committed and N.J.S.A. 2C:11-3c(4)(g),that the murders were committed the course felony. of a pretrial summary,
Defendant made numerous motions. dispositions adjourn motions and their were as follows: to those (denied); factor pending Biegenwald. the case the new to strike c(4)(c) (denied); unconstitutionally vague challenging the as County composition Jury of the Grand and Petit list Essex (consent 28, 1985,joining incorporating filed order June record); qualification motion to bar death Ramseur (denied); motion to dismiss the indictment based on the uncon- (denied); stitutionality Capital Punishment Act motion to c(4)(f) c(4)(g) aggravating strike ‘factors as cumulative (consent adjournment pending development); factual c(4)(c) finally inapplicable develop- a motion to strike as case, regarding killing ing particularly facts of this (denied prejudice). Additionally, Maria Bass without it was *12 agreed conduct the initial voir dire that the court would asking supplemental questions, each then and that the side parties proposed questions submit to the court. would parties agreed substantially
The use the same to voir dire employed in procedure questions and that the trial court had Rose, 454, (1988). 548 2d 1058 The court State v. A. request that the venire members fill out a written would questionnaire. question The court would first the venire mem
bers, attorneys question then them. The defense and the would questions proposed list of for the court to ask submitted a they sought through cover themselves direct a list areas to potential questioning. One such area was racial bias. the questioning, After the voir dire trial court convened death-qualified attorneys peremptory jurors, and the exercised challenges final The State and the jury until a was chosen. peremptory chal- defense both exhausted their allotments of lenges. process, that the defense moved At the conclusion of ’ mistrial, asserting although a somewhere between five for that on the eight persons jury, African-American remained excuse African- prosecutor challenges had exercised ten juror. a jurors and one to excuse Latino defense American prima showing facie that maintained it had therefore made challenges discriminatory system- prosecutor employed group. of an atically to exclude identifiable members only Afri- responded challenged it had those The State during voir dire expressed who had reluctance can-Americans that a death The court considered penalty. to enforce the challenges. rejected also legitimate The court reason excluding persons pos- argument systematically who was also invalid penalty the death sess some reservations about right to a com- defendant’s it contravened the because community. of the fair cross section prised of a admissibility hearing of defen- determine the A Miranda resulted an unchal- August dant’s statement admissibility. lenged finding of informing from preclude the State also moved Defendant Williams, Kisha McDougald’s accomplice, age of case and further it was immaterial State’s asserting that outweighed” by prejudice “far any probative value was responded The State defendant. knowledge would cause such evidence, as it related admissible accomplice’sage was that the knowing purposeful acts proof that defendant committed conduct, McDougald who enlisted and that it by his own *13 young accompany agreed this woman to him. The court it fact, probative was a relevant and further held that its value outweighed by prejudice. was not the risk of undue An inter- locutory appeal on this issue was unsuccessful.
2. Trial—Guilt Phase confession, admissibility
Given the of defendant’s the State’s proofs during guilt-phase essentially of the trial were corroborating directed at the facts to which defendant himself Also, had confessed. the State’s evidence addressed defen- prosecution dant’s fear of relationship his sexual with the daughter Basses’ minor and his forceful entrance into the sought Basses’ McDougald’s home. The State to characterize apprehension possibility being prosecuted at the as his mo- August tive for the murders of 19th. opening jury, McDougald’s its the defense conceded
guilt of the numerous offenses. defense stated:
[********] Often ... I can I client was involved. can that he did deny my deny what the Prosecutor said he did. in this essentially But, case, unfortunately gentlemen, McDougald ladies and for the defense and Mr. we unfortunately can’t it in this case because and I because deny essentially, say essentially not the facts as perhaps completely, essentially presented you by morning____ again urge Prosecutor are what we But, happened you guilt an mind because this case is about more than or innocence. It keep open McDougald is about whether or not Mr. lives or dies. posture admitting The defense maintained this tactical McDougald’s guilt throughout guilt phase of the trial. The virtually defense conducted no cross-examination of the State’s proffered witnesses and no evidence. presented photographs describing
The State and witnesses scene, discovery and condition of the decedents at the found, investigation. and the The officers involved in evidence detailed a scene that the case who testified for McDougald’s Marvel, Anthony corroborated account. Officer scene, along partner they testified that with his first 3:55 a.m. and approximately at 14 Bedford Street arrived *14 lying open, male decedent on found the front door broken wall, a female decedent up against a and the kitchen floor of in the front bedroom. crying infant and Smith, a Detective how he and Detective Conti described Police, diagramed, technician with the State crime-scene collected the searched, premises, and photographed and photo- crime scene presented various The State evidence. testimony. Those Detective Conti’s graphs, conjunction with victims, lock on the -front the broken photographs showed identi- bedroom, Detective Conti also door, the kitchen. and cinderblock, brassiere, as bat, bedsheets,, and fied a baseball the maroon He also identified on the scene. materials found morning August defendant on those taken from pants as 20th. identifying steps he took to the Eutsey testified
Detective out above. defendant, has been set much of which locating and by him defendant made to authenticating the statement After jury. 20th, read that statement the Detective August he testified that Department Fire the Newark captain A approximately Street to a fire at 69 Somerset responded first fire in the bedroom extinguished a p.m. and 11:30 told the and Boswell Officers Moore apartment. floor and June on June 10th Maria Bass’ calls response to their about 18th, respectively. testified, based on Laboratory Police the State from
Chemists enzyme and and blood the forensic evidence analysis of their in the front found pillowcase the sheet comparisons, that of Maria with that consistent of blood showed stains bedroom blood, human traces of and bat had Also, cinderblock Bass. had tested from the defendant taken pants maroon and the victims. either or both consistent for human blood positive “compared from the bedsheet rayon fiber recovered A red was wear- pants defendant chemically” with the physically his arrest. ing time of at the Melczer, Examiner’s County from Essex Medical Dr. Office, findings autopsy of his examinations of the outlined the explained that both victims had bodies. Dr. Melczer victims’ injuries; by caused distinct sorts of those stab- suffered two by force. Walter Bass had two bing and those caused blunt chest, left of his as as fatal wounds to the side well stab and neck. He also superficial stab wounds to the abdomen injuries head caused a blunt instrument. suffered serious crushed, skull was frac- completely ear was and his His left posited The doctor that both on both sides of his head. tured capable causing to the head were the stab wounds blows opinion In Dr. Melczer’s Walter Bass had the victim’s death. minutes. Maria Bass had for about ten to fifteen survived head, her multiple injuries to the which crushed blunt-force *15 the cause of her death. Her skull and were determined to be like an crushed and the skull underneath fractured left ear was egg Additionally, deep there was a slash to her neck and shell. protruded vagina. from her Dr. Melczer said a baseball bat within a few minutes but that Maria Bass lost consciousness minutes. survived for five to ten testimony supplemented by photographs clinical That was decedents, laboratory. The defense police taken at the photographs, of those strenuously objected to the introduction highly prejudicial, repetitive of the alleging they that were pictures, again unneces- previously-introduced crime-scene and from offer- enlarged. Although precluded the State was sarily enlargements photographs, most of them none- ing the ruled admissible. theless were James, Simmons, Howard, Marilyn and all Antoinette Bernice during prior the months romantically with defendant involved crimes, McDoug- They described to the testified for the State. Basses, evolving relationship his belief that the ald’s him, charges against and his alterca- Basses had filed criminal them. tions with recorded, charge
Although objections jury are no previously argued trial attorneys for defendant had that the language permitting guilty capi- a verdict to should omit court finding a defendant intended to cause tal murder based on that The court that bodily injury to victims. denied serious request. requested that the trial court reiterate
The defense also capital under the statute between murder the distinction drawn accomplice, specifically and as by “one’s own conduct” an “something required that the defendant aided more is than end, requested a To this the defense abetted the murders.” charge jury beyond had to find a reasonable doubt by McDougald that had Anthony inflicted it was batteries convict him of know- the victims’ deaths before it could caused by ing murder his own conduct. The defense purposeful persons’ of several blows asserted that if it was combination deaths, injuries caused the jury or the could not ascertain which McDougald guilty not be found of these counts. could fact that the issue was one of
The trial court held causation accomplice to the related jury respect With resolution. issue, finding prepared in which a verdict sheet triggered a choice between knowing purposeful murder killings either the were options. The could find that two accomplice he was an own conduct or committed defendant’s in the murders. counts, except guilty on all a verdict of returned guilty of the lesser-in- ten of defendant was found
count which *16 degree The homicides were offense of third arson. cluded by be defendant’s own conduct. found to committed Penalty 3. Trial Phase prove aggravating factors with sought
The State to three c(4)(c), murders tor- respect killing: to that the involved each mind, battery; c(4)(f), ture, an depravity aggravated or prosecution escape to detection the murders were committed offenses; c(4)(g), commit- and that the murders were for other felony. ted the course of a The State relied on the evidence presented guilt-phase adduced at the and rebuttal evidence. by asserting mitigating The defense countered three factors c(5)(a), equally applicable to each death: that defendant’s con- disturbance; by duct was motivated an extreme emotional c(5)(d), by that defendant’s self-control was diminished a mental defect; c(5)(h), any other factor relevant defendant’s character or record or to the circumstances of the offense. sought portray Anthony McDougald
The defense as a product deprived youth despond- of a violent and whose severe ency over loss his wife and newborn son caused him to portrayed by through lose self-control. As the defense testimony persons McDougald, who knew the ultimate acts August product of violence deprived 19th were the of a background precipitating and of recent events. Vogel,
Karen a social worker in the nursery intensive care birth, Hospital, baby’s Beth Israel testified that after the An- thony McDougald very was concerned and anxious about the McDougald spent good condition of his son. deal of time at hospital. apparently very child, He became attached to the who in a was ventilator.
Shirley McDougald McDougald’s also testified about attach- ment to his newborn son. She stated that when her son going discovered Bernice Simmons was not to return with the baby, extremely upset. he became crying He came to her help trying enlisted her by having to coax Bernice back her repeatedly telephone asking speak South Carolina to Bernice. unavailing, These efforts were however. She also told the left, “just go,” that after Bernice her let son his self was all up” manage “keep “wound and could not still.” July, presented As the weeks went defendant as becoming increasingly depressed separation over his from Bern- baby. McDougald July, ice and the Ms. testified that late appeared get at the YMCA demanded she Bern- back, baby charged ice and responsible that she was *17 leaving, her, Bernice attempted up to assault and tore her room. She also testified that a friend called her later and told “lying that her son was at the home her friend’s on the floor crying saying he wanted to talk to his mother.” She refused to speak with him. Campbell,
William McDougald, pre- friend of testified that sumably day on this same July late in he observed defendant Newark, leaving 20th Street in apparently the residence of his Harper, crying driving “ex-wife” Linda erratically and his car street, up and finally running down the it head on into a brick only injuries, wall. He suffered lip, minor a “busted” reportedly got then out of the Campbell car and said to Mr. wife, it, myself.” “Damn I kill can’t even Jones, Ann
Debra an intake coordinator at the substance- program Community abuse at Mt. Carmel Guild Catholic Ser- 26,1984, vice July Center testified that on defendant went there seeking help. He sat with his head between his knees as he help, told her that having he needed that he was a lot of him, problems, including leaving his wife and that he had tried commit drugs, suicide. He said that he did not take but problem instead that his involved his mental health. Conse- quently, he psychiatric was referred to another counselor in the unit, apparently facility but seeing anyone left the without else. day, phoned
On this same his mother at her residence at the on Broad YMCA Street Newark and asked nearby Washington her to meet him outside Park. She and a friend, Wilder, McDougald park. Debra met Mr. in the Debra McDougald Wilder and Ms. both testified that he told them that thought losing sought help he he was his mind and had at both College Hospital Mt. Carmel Guild and but turned was down. nervous, responded ques- He looked seared and affirmatively to using drugs, expressed tions about his belief that someone following accompanied him. He the two women Ms. McDougald’s place employment. *18 if committed he continued might son be
Fearful that her “root McDougald took him to see a hospital, Ms. help at a seek prescribed put oils to in day. person That later that doctor” back, pills, and bring candles and her Bernice’s clothes Twenty-Third Psalm in a repeat the McDougald to instructed supposed to follow this McDougald was chant-like manner. help. for further earlier regimen days, for but returned seven he at that time defendant said Shirley McDougald testified that sleeping, having trouble and taking drugs he was was because gone my and gone; Antoinette is upset “Bernice is was because anything to live for.” dead. I don’t have brother is defendant, Winston, a friend of Donald Defense witness McDougald’s helped to be this “doc- efforts corroborated apartment jury that he went to defendant’s tor.” He told the out, lights ten to early August and found the night one in saying burning, defendant in the bedroom candles and twelve he wit- also testified that some kind of chant. Mr. Winston aimlessly sitting staring into the on his bed nessed inquired about a broken it. When Mr. Winston crib beside him that he had apartment, McDougald told television kicked it in. gotten upset and doctor, McDougald Ms. testified trips to the root After the weeks, defendant for several that she was not contact with early evening August from him on in the and next heard 18th, and borrowed ten dollars when he came to the YMCA told her about the fire he her. Later he called her and from Eutsey, she stated that In her statement to Detective had set. memories,” “burning up explained to her that he was her son baby her and left him and took his with that “his wife had rape trying put jail him in Antoinette’s mother was [to] life—he at the he at the bottom of his was assault and was bottom, McDougald did not her his life over.” Ms. believe woman, Williams, son, presumably got Kisha young so a story McDougald and confirmed the defendant’s phone Mr. during told her helped. apparently He also adding that she had “they this conversation my body found brother’s at 2:00 or morning 2:30 in the they will find mine the same time.” later, McDougald early Ms. testified hours of August McDougald her, 19th they when Kisha and came to see appeared “high” whispered both and left her when Kisha to her “get get high son that she wanted to some stuff to with.” McDougald Ms. extensively also testified about defendant’s born, single childhood. She was when defendant was shared a four-room parents house with her and sister in North during McDougald’s Carolina. She told the of instances sister, her, infancy when her apparently angry with burned and instance, cut the child. In one when the two sisters were having fight, McDougald’s grabbed-the aunt child and cut his blade, face with a razor from the mouth to the ear. *19 McDougald Anthony McDougald younger Ms. left and his parents years brother with her for two while she came to boys Newark to work as a live-in maid. When the were later brought Jersey to New to their live with mother and her Newark, boyfriend drug-infested they area of once more subjected McDougald’s boyfriend were to abuse. Ms. hit the parents children “more than ... most beat their kids.” The repeatedly children had to also watch their mother be beaten. McDougald “hyper” got Ms. labeled her son a child who into fights. perched He had once on the school roof and threatened jump off.
Finally, McDougald Anthony McDoug- Ms. told the how relationship abruptly ald’s close with his brother ended when bridge his brother was thrown off a onto the Garden State Parkway and killed sometime in 1983. McDougald
Ms. testified that her son had never been violent her, except July or threatened her of 1984. On cross-ex- amination, prosecutor Anthony McDougald asked whether give to kill mother if him had threatened she did not some proceeds buy the insurance on his life to a car. Ms. brother’s McDougald money admitted that he wanted some of the but cross her. also testified on denied that he ever threatened She killed the Basses because he “wasn’t her son told her he that rape anybody.” rape no he didn’t going jail because Washing- Marilyn The State called four rebuttal witnesses. Eutsey refuted the assertion that ton and Detective night of of alcohol or narcotics on the was under the influence the murders. and friend of Washington, another resident of the YMCA
Ms. returning she home from MeDougald, Mrs. testified that as a.m., 3:00 she encountered defendant work sometime after MeDougald hallway building. young woman of that mother, Washington explaining that asked Ms. to check on his related, disbelief, Washington’s upset. He also to Miss she was people night. prosecutor that he had killed two persons implied Washington Ms. was sensitive to who were background special police officer intoxicated due to her as a opinion he elicited her working security in bars. Then conversation, approximately a five-minute defendant did after any appear way. intoxicated in not to her be intoxication, Eutsey respect to the issue of Detective With during testify MeDougald that Ms. never stated was recalled police August on 19th that her son was her declaration to high morning him on of the murders. when she saw Camp- called Foster to contradict William
The State Officer McDougald’s attempt suicide had been bell’s assertions that responded to the scene of that car severe. Officer Foster had July 1984. Officer Foster testified that the car accident *20 resting building. of a The car had against was found the side sideswiped building. damage not hit head on but had The car was confined to the left front fender. That testimo- damaged ny supplemented by photographs of the car. to rebut the assertion The State also called Bernice Simmons Anthony MeDougald “changed” after she left with the baby. testified on direct examination that she Ms. Simmons manipulations, lying, “was tired of his his left because she against my me and of his threats deceiving and ... tired safety her and that stated that she believed family.” She also during the course jeopardy. She said that baby were her on to harm relationship defendant had threatened of their occasions, her had also threatened brother that he numerous that he would kill his sister, he had said to her and that proceeds the life insurance she would not share mother because jury she lied Ms. told the paid on his brother’s death. Simmons feared that otherwise intention to return because she her about however, examination, cross he would not let them leave. On given to an investi- a statement Ms. Simmons confirmed had said she prosecutor’s previously office she gator from the “get[ting] on nerves” the defendant was left because [her] pregnancy. Antoinette’s blaming her for he was because ensued, culminat- examination A of cross and redirect series appeal. arguments on ing in motion and the basis a mistrial to the threats made questioning turned The focus of recross, the sister. On brother and defendant to Ms. Simmon’s married brought out the fact that Ms. Simmons defense harm these relatives. threatened to he had defendant after why she had asking Ms. responded by Simmons prosecutor afraid defendant, that she was to which she answered married him, me marry he had told not to “because of him and afraid rape when he was charges against him for he had before that a mistrial based promptly moved for Japan.” The defense information, denied. Counsel which was of that the disclosure jury a give the judge if the should when and then debated that material. regarding consideration of cautionary instruction merely high- that an instruction would objections fervent Over facts, charged jury that it court prejudicial the trial light limited regarding Japan for the testimony consider the could rea- credibility and the assessing Bernice Simmons purpose of Anthony McDougald. marrying gave for son she summation, that their client was defense asserted frenzy had killed in a mental defects who suffering man from spending the remain- punished by adequately and who would be *21 prosecutor respond- The Prison. der of his life in Trenton State had been asserting of mental disease by ed that no evidence merely a criminal. not sick but presented, that defendant was sending such a remorseless man prosecution The stated that facility bigger hell.” make that “a Trenton State Prison would reference to objection that this The court overruled defendant’s nonstatutory aggravating prison was allusion to a the an factor. explained charging penalty phase, the the trial court the jury the to find the
respective proof, the need for burdens beyond doubt aggravating factors a reasonable existence outweighed aggravating factors the and also to find that those It also ex- mitigating beyond factors a reasonable doubt. exist aggravating factors had to be found to plained that finding jurors, they did not have to be unanimous all but that Further, any mitigating factors. the court the existence of acceptable, charged jurors that a nonunanimous verdict was would be sentenced for each and that in that event defendant disqualifier. thirty-year parole with a murder to a life term factors, aggravating found two found all three factor, factors, mitigating emotional distress and the “catch-all” outweighed mitigating aggravating factors and that Further, beyond found factors a reasonable doubt. c(4)(c) c(4)(f) outweighed individually the com- that factors factors, indepen- c(4)(g) that factor did not mitigating bined but Accordingly, dently outweigh mitigating factors. the trial Anthony McDougald noncapi- to death. On the court sentenced counts, forty years was sentenced to tal the defendant parole ineligibility. judgment A motion for a twenty years acquittal and a motion for a new trial were denied. on all counts THE II. CHALLENGES TO STATUTE CONSTITUTIONAL 2C:11-3c(2) is uncon Defendant contends N.J.S.A. present it allows the State to evidence that stitutional because of evidence order to rebut other such lies outside rules result, argues, injects unreli defense evidence. This *22 in capital sentencing into the decision violation able information eighth federal and article amendment of the constitution I, 1 paragraphs and 12 of the state constitution. 2C:11-3c(2)(b) part: provides
N.J.S.A. mitigation admissible If the evidence in which would not be defendant produces governing rules the admission of evidence at criminal the State trials, under the regard governing that the rules the admission of rebut evidence without may evidence at criminal trials. narrowly scope the of permits The Act the State exceed evidentiary presented by rules the defense to rebut evidence evidentiary falls that also outside the rules. 153, Supreme Gregg v. 428 Georgia,
The Court noted U.S. (1976) 2909, 2933, 49 L.Ed.2d 884 that 96 S.Ct. indispensable prerequi is an sentencing “accurate information to a reasoned of whether a defendant shall site determination may have made people or die of who never before live jury impos sentencing In order to ensure that the .decision.” deserving the only of es death when the individual defendant is in the is allowed to evidence punishment, defense introduce The penalty phase, that lies outside rules of evidence. however, State, permitted under the should also be to rebut present a distorted terms. the defense could same Otherwise Jersey Capital Act jury. The New view of and the necessary prosecution between the strikes balance goal justice in order to individualized defense attain Hence, capital penalty we conclude that N.J.S.A.' context. 2C:11-3(2)(b) under and state is not the federal unconstitutional constitutions. ISSUES
III. JURY SELECTION presents regarding jury selection. four issues Defendant Jury Systems Petit in Essex argues First he that the Grand population in unrepresentative of the violation County are Jersey and the Constitu States Constitution New the United Ramseur, 106 rejected argument in State We tion. 123, 212-38, (1987), A. 2d to adhere to that continue position. (1) court remaining issues are: that the trial failed
question jurors possible prejudice racial in viola- potential about Jersey federal and the New Constitu- tion constitution tion; (2) challenges its peremptory the State exercised minority jurors in systematically to and female viola- exclude Jersey and the Constitu- tion of the federal constitution New tion; potential (3) excuse a that the trial court failed to capital punishment and not juror strongly favored could who impartial. reject also assure the court that he could be We challenges explained those the reasons below. Inquiry Prejudice
A. Voir Dire Racial argues inquiry the trial limited into Defendant court *23 “oblique” question potential jurors’ single racial attitudes to a ruling, That prejudice. that failed to reveal defendant main tains, intelligent exercise of excusáis for interfered the challenges impermissible an peremptory cause and created prejudice proceedings. infected the risk that racial procedure developed as The dire in this case follows. voir First, briefly trial court read the indictment and instructed regarding panels procedures the venire the law and a death , penalty venirepersons completed The case. then written topics range general questionnaire that covered a broad of such residential, employment history, prior as their marital and court, prosecution, The exposure process. criminal questions. supplemental asked and the defense counsel then previously substantially The court used defense counsel’s questions. proposed questionnaire pro- and list of One such reason, posed you any was: know of such as question “Do bias, think prejudice, opinion, you or other can of that prevent serving impartial juror you completely would from as Although posed question in this the court the above case?” question. venirepersons, first it soon modified the several of the question you any feelings you have within became: “Do being juror prevent you impartial from a fair and would this case?” and defense counsel were afforded substantial
Prosecution
subject
ques-
of degree
freedom in terms
matter of direct
tioning. Although
questioning
much of the defense counsel’s
given
qualification,
attorney
free rein
focused on death
potential jurors’
into the
racial attitudes. Defense
delve
question-
deny
unhampered in his
counsel does not
that he was
prejudice
objection
he
no
ing
racial
or that made
about
Nonetheless,
question.
of
proposed
court’s modification
responsibility “for the virtual ab-
defense claims the ultimate
into
the trial court.
inquiry
sence of
this area” remains with
required
that the trial court was
Thus defense counsel asserts
so
he
pointed questions
prejudice
racial
to ask more
about
follow-up
for
put on notice
the need
this issue.
would be
of
this
Supreme
States
Court and
Court have
Both the United
prejudice. The
of
on racial
addressed the issue
voir dire
Supreme
has held that the federal constitution mandates
Court
jurors
prejudice
prospective
only
racial
inquiry
an
into
very
racial
are woven into the
fabric
cases in which
issues
Carolina,
trial.
U.S.
the case and
Ham South
(1973), an African-American civil-
1017,
(1976),
upheld
47
the Court
the trial court’s
L.Ed.2d 258
dire, into
attitudes of
inquire, during
refusal to
voir
the racial
explained that
had not
prospective jurors. The Court
Ham
any
into racial
time that
inquire
ordered trial courts to
attitudes
Instead,
minority
requests
process
it.
due
man
a
defendant
inquiry
“[rjacial
inextrically
only
an
when
issues were
dates
][
Ross,
424
up
supra,
with the conduct of the trial.”
U.S.
bound
1021,
597,
at
at 264.
that
at
96 S.Ct.
47 L.Ed.2d
The mere fact
in
the defendant
was of a different race from that of his
Ross
victim,
prove
did not
the trial would
issues of racial
involve
1022,
598,
at
at
at 265.
prejudice.
Id.
96 S.Ct.
47 L.Ed.2d
States,
182,
Similarly, in Rosales-Lopez v. United
451 U.S.
1629,
(1981),
68
22
a
101
L.Ed.2d
Mexican-American
S.Ct.
importing illegal
trial
tried in federal court for
aliens. The
prospective
“feelings
jurors
they
any
court asked
whether
them
prevent
aliens” or had other reasons
could
about
being fair and
The trial
defense
impartial.
from
court denied
requests
specific questions concerning racial
counsel’s
for more
prejudice.
upheld
ethnic
The
the trial court’s denial on
Court
ground
requires
that the
constitution
trial courts to
federal
grant requests
prejudice
on the issue
racial
voir dire
only
there is
indication”
racial or ethnic
where
“substantial
189,
play a
case. 451
101
prejudice will
role
at
S. Ct.
U.S.
1637,
at
More Turner 476 U.S. S.Ct. (1986), majority agreed 90 L.Ed.2d a of the Court overturn a death sentence based on trial court’s refusal to jurors their racial prospective ask about attitudes. Court capital involving case interracial held that an constitutionally prospective jurors entitled to have crime was questioned of the informed race of victim to be 36-7, 1688-89, Id. at at 37. racial bias. S.Ct. 90 L.Ed.2d plurality expressed A that the fact that Court view charged interracial does not alone the crime involved violence jurors prospective questioned a defendant about entitle to have What the scale in that instance was the broad racial bias. tilted
553
given
penalty hearing
discretion
in a death
and the
grave consequences
improper sentencing
capital
in a
case.
Court, however,
may
complain
stated that a defendant
not
inquire
about the trial court’s failure to
about racial
unless
bias
requested
inquiry.
37, 106
the defendant
such an
Id. at
S.Ct. at
1689,
This Court has also considered the extent to which a defen
inquiry
prospective
dant is entitled to an
into racial bias
jurors. Even in cases with no interracial crime or obvious
overtones,
prefers
racial
this Court has stated that it
a search
bias,
ing inquiry
requested by
into racial
if so
defendant. State
Ramseur,
247-48,
supra,
v.
106
at
therefore more difficult A to discern. excusing jurors or “no” will aid the trial court in “yes” response prospective exercising challenges. cause and will assist the defense in its preemptory cognizable group, When the defendant is a member of a a more minority searching voir dire should be if conducted, requested. 550 A.2d [Id. 1172.] process acknowledges Our view of the voir the fact that dire jurors may ethnically against racially be biased the defen dant, explicitly racially even in of an the absence divisive Ramseur, 123, 247, factual situation. 106 N.J. (1987). (“We reality A .2d 188 are sensitive to the of racial prejudice, possibility may prejudge jurors and to the race, defendant because of his or her even in the absence of an crime.”) interracial that trial courts We have recommended it, inquire requests into racial but bias whenever recognized have also the broad discretion trial courts should process ambiguous have to determine the situa voir dire tions. law, reject
Based on this review of the relevant we defen- challenge procedure. dant’s to the voir dire The crime at issue *26 an African- nature. It concerned not of an interracial trial African-American victims. The defendant and American into expanded an voir the issue of racial court allowed dire he informed the Court that would deal bias. Defense counsel directly unhampered the of racial attitudes and was issue jurors doing so. The trial court asked the by the Court (sometimes speci- any knew of the court they reason whether bias) prevent that them prejudice the as would fied reason impartial jurors De- serving completely as in the case. from objection question. made to that modified fense counsel no jurors that question, After the court had asked the it allowed jurors’ inquire full the racial defense counsel freedom into beliefs. permitted
Because the trial court defense counsel’s full inquiry, any unearth racial unrestricted sufficient to relevant compromised integrity have the of the trial bias that could proceedings, procedure we find that the trial court’s voir dire impartial jury not of an or a fair trial. deprive did defendant Systematic Prospective B. of Jurors Based Exclusion
on Race and Gender
argues
systematically
the
Defendant also
(the
the
and women
excluded from
minorities
below).
gender-related
prosecutor
not
the
claim
did
raise
peremptory challenges
eleven
to exclude one Latino and
used
venirepersons.
venireper
Ten
ten African-American
of those
were
sons
women.
508,
Gilmore,
(1986),
103 N.J.
held that the New Constitution the impartial procedure and jury. an We there discussed the triggered by allegation improper use of proof burden First, challenges. object prior defendant must peremptory peremptory swearing of the the State’s use race, jurors challenges to strike because of their ethnic back- prima ground, or then make a sex. Defendant must facie showing objection has that the merit:
555 show that has struck most or all of the members of [T]he party may [the State] group venire, the identified from the or has used a number of disproportionate against group. jurors He also demonstrate peremptories may group— share this one characteristic—their in the question only membership heterogenous and that in ail other are as as as respects they community group whole ... defendant need not be a member of the excluded ... [T]he alleged if he if in addition his victim is a member of the is, yet especially group majority remaining jurors belong, to which the these facts may also be called to the court’s attention. (quoting 511 A.2d 1150 Wheeler, Cal.3d 583 [Id. People 258, 276, (Cal.1978).] P.2d 748, 764, Cal.Rptr. Next, persons a defendant must establish that the excluded cognizable group represents are members of a a cross-sec community. Finally, tion of the the defendant must make a strong showing by against that the State was motivated bias challenged group juror’s personal rather than views. *27 Ibid.; Watkins, (1989). 2d 1344 State 553 A. case, making prima
If defendant succeeds in the facie burden then shifts the State to demonstrate it did not base peremptory challenges group its bias. The State needs to .genuine ground believing show a that a reasonable prospective juror might personal have an individual or bias that excusing would make him or her rational and desirable. Where justify peremptory the State does undertake to its exercise of challenges, explana the trial court must determine whether the proffered by genuine weigh tions the State are and must those explanations against showing by made that the defendant. On weighing determine defen the trial court must then whether rebutted, evidence, preponderance the dant has the of the presumption peremptory of constitutional exercise of the chal lenges. 2d 1150. Id. 511 A. objected
Defendant to the State’s use of eleven of twelve challenges African-Americans and peremptory to excuse ten State, turn, argues per- in one Latino. The because centage jurors jury, in the sworn five or of African-American (or 37%) equals six out of sixteen or exceeds 31% 37.5%, population County African-American Essex disportionate- that the State has has to establish defense failed challenged groups. ly minority actually this jury served on fact that African-Americans
The discrimination and dispositive not of whether there was racial is responsibility ascertain court of the does not relieve trial challenged on a prospective juror peremptorily any if challenge discriminatory appears It that the State did basis. Indeed, disproportionately. of racial minorities when members implicit- explanation, for an the trial court it turned to the State acknowledged prima had made a case. ly that defendant facie explained there was no racial issue this
The State first jurors because each of them case that it had excused the penalty. expressed imposing about the death hesitation rationale, accepted no as do we. We find trial court allowed to error in the trial court’s decision because the State is personal peremptory challenges jurors’ on the exercise based expresses qualms imposing juror A who about biases. may penalty possesses death an individual view that the State antagonistic goals find its at trial. does not participation
A voir dire review State’s any from the norm when the excused indicate differentiation jurors questioned. The voir dire indicates that were exploring jurors' on the was most interested in all views exploration appropriate That is and nondiscrimi- penalty. death Moreover, capital our review voir natory in a case. dire *28 express hesitancy jurors nine of the eleven did some shows that participate respect With to reluctance to in a death case. or challenged jurors, repeated requests were made another of the process speak up. acknowledged that the whole to her to She Thus, frightened find that and she was uncomfortable. we her challenges significant number of even if the State used minority jurors, is no indication that the reasons exclude there proffered pretextual or be- the State for exclusion were trayed racism. subtle or unconscious
557 charge that the State also peremptory used its charges discriminatorily to excuse women jury from the was not filed below, Yet, as mandated Gilmore. even if we were to issue, consider the defendant does not any advance convincing evidence that women were excluded from jury on the basis Hence, of their sex. we conclude that the State did not exercise peremptory its challenges systematically to exclude mi- racial norities and women jury. from the C. Juror Should Have Been Excused Because of Inflexible
Belief in
Penalty
Death
Finally, defendant raises the
juror
issue that one
should
not have been seated
expressed
because he
an inflexible belief
imposition
in the
penalty.
of the death
Because
impor
tance of a fair
capital sentencing
context we consid
though
er that
issue even
object
defendant did not
to the
seating
juror during
of that
record,
voir dire. From the
it
appears that
initially
he
stated a seemingly-unequivocal belief
in the
penalty.
being questioned further, however,
death
After
expressed
he
the view that he would be able to consider
imposing a life term
penalty,
instead of the death
depending on
his
aggravating
examination of the
mitigating
factors.
Defense
object
counsel did not
seating
juror.
of this
We
do not believe that his statements indicate that he would have
automatically imposed
penalty,
the death
Witherspoon
see
v.
Illinois,
510,
1770,
(1968),
391 U.S.
88 S.Ct.
Defendant makes three
guilt
phase. First,
argues
pursuant
Gerald,
he
(1988),
intent and intent subjected him cruel and process him due of law and to of Second, argues punishment. he the trial court’s failure unusual distinguish murder “own conduct” and between one’s sentencing liability capital purposes de accomplice-murder subjected him process of and to cruel and prived defendant due Finally, punishment. defendant maintains that Count unusual charged him with more than one offense Eight of indictment prove beyond that the State also failed to that count reasonable doubt.
A. Effect of
v.
State
Gerald
capital
Accordingly,
This
case was tried before Gerald.
distinguish
require
jury
trial court did not
the
between
bodily injury
intent to
and the intent to cause
cause serious
However,
overwhelming
because of the
evidence that
death.
victims,
find,
to kill
as we did in
defendant intended
both
we
(1989),
Pitts,
bodily knowingly causing is convicted of of them—as one who opposed purposely subjected not be death death under those same provisions—may penalty. 2d N.J. at 549 A. [113 792]. of susceptible the evidence in either find Because Gerald capital murder conviction. How ing, we reversed defendant’s capital ever, recognized we some murder Gerald could compelling so that there be cases the evidence would be of his victim. no the defendant intended the death question that 79-80, A. Id. at 2d 792. Gerald, instance, trial in this without the benefit court language literal accordance with the
instructed Act, 2C:11-3(a)(1) (2), that defendant could be N.J.S.A. if either that defen capital murder found convicted pur knowingly to cause death or purposely and intended dant *30 posely knowingly and intended to cause bodily injury serious Thus, resulting in death. the trial court failed to have the distinguish between kill intent to and intent to cause serious bodily injury.
Because the record nothing contains support that would a bodily injury” “serious charge, murder we find that the trial give court’s failure to bodily the serious injury charge was not in error.
Defendant’s own words demonstrate his intent to kill. De- fendant described Walter Bass’ death as follows: I then cut him across his throat with a knife and he told me: don’t.” “Tony, holding
Then I him stabbed in the chest. I was his neck with hand. Then I my again think I stabbed him two times. He fell on the floor. I told Kisha to watch him. And, respect death, to Maria Bass’ he describes his subse- quent actions: got I went and a cinderblock that inwas the house and I hit her in the head again.
with it. Maria moved Then I hit her with the bat once. Then I took the knife out of Kisha’s hand and cut Maria’s throat. Likewise, McDougald’s actions after the murder demonstrate his intent to kill rather bodily than to inflict serious injury on McDougald Basses. related to his mother and later to a neighbor Basses; of his mother that he had killed the he also told his mother that he wanted to kill people. three more McDougald police then called the to inform them that he had killed the Basses and to tell them about where to locate the bodies. In his police later confession to the McDougald never expressed any sentiment to indicate that he had intended mere- Basses, ly to hurt the not kill them. At trial the defense prosecution’s conceded that the version of the facts was essen- tially correct. The severity extreme injuries victims’ as well as the defendant’s behavior before after the crime present not even a scintilla of evidence to allow us to conclude merely that he rage struck out at the Basses a but did not intend to kill McDougald angry them. The fact that at the negate Basses when he murdered them does not the evidence that he intended their deaths.
560 capital previously considered cases which
We have
compels the conclusion that the defendant intended
evidence
Hunt, 115
330,
558
1259
State v.
N.J.
kill the
A .2d
victim.
(1989) (the
twenty-four
inflicted
stab wounds and
had
immediately
the crime that he
killed his
told someone
after
victims); Ramseur,
A. 2d 188
(the
supra, 106 N.J.
victim,
previously
defendant had
threatened and assaulted his
wounds,
had
returned to inflict additional
stated
children).
kill the
intent also to
victim’s
Pitts,
(1989),
.2d 1320
A
killing
persons and
defendant was convicted of
two
sentenced
to death for the death of one. We determined
the defen
rage
killed in
did
dant’s statements that he had
a
not intend
need for Gerald
gave
charge.
harm
his victims
rise to
*31
record, however,
Id. at
615,
to
B. Defendant’s Own Conduct
Accomplice Liability
sufficiency of
trial
questions
also
Defendant
the,
personal
regarding
distinction between
court’s instruction
culpability
accomplice liability.
Jersey’s Capi
Under New
only
tal Punishment Act
persons
knowing
those
who commit
purposeful
murder
their
eligible
own conduct are
for
penalty.
Capital
Hearings
the death
also
See
Punishment Act:
(1982).
on S.112 before the
Judiciary
Senate
Committee
In
Gerald, supra,
792,
N.J. at
549 A. 2d
“own
this
requirement
conduct”
interpreted narrowly
that a
mean
defendant must
“actively
directly
have
participated
act, i.e.,
injuries
homicidal
the infliction of the
from
which the victim died.” Id. at
that it was the
defendant’s conduct alone
had caused his
death-eligible.
rejected
victim’s death before he could be
We
requirement, explaining
such an exclusive causation
that “[t]he
distinguish,
purposes
‘own conduct’ standard seeks to
for
punishment, guilt premised on defendant’s own actions from
guilt based on the actions of another
...
critical elements
acted,
immediacy
are that
defendant in fact
and the
of his
Moore,
Ibid.;
to the
conduct
victim’s demise.”
also
see
State v.
239, 300-03,
(1988) (accomplice liability
113 N.J.
As we stated in it is not to trace could exactly action that have caused death to determine which injury autopsy may demise. An led victim’s not reveal injury, among many, an certainty absolute which killed *32 important More is the how the victim. issue of immediate death, or defendant’s actions were to the victim’s and whether administering that participated injuries not he or she the killed the victim. charge adequately explained
The and differentiated court’s liability active participation accomplice between for murder. charge. Additionally, object counsel did the Defense not required guilty if of verdict sheet that defendant was found murder, knowing purposeful the should check one of accomplice. options: by murder his or as an two own conduct by committed both murders his found conduct, by amply supported a conclusion the record. own stabbed, McDougald directly killings. in both He participated accomplice, they His cut and struck victims until died. Kisha, Moore, defendant in also struck the victims. Unlike the however, present accomplice when her dealt who was not even finally killed a victim whom she had tortured for the blows that time, McDougald’s on the Basses period extended of attack an sudden, Thus, direct, unquestionably lethal. adequate, jury explicitly and the decided court’s instruction was issue it marked down on the verdict sheet that when by the murders his own conduct. defendant had committed Eight C. Count of the Indictment Eight as Count of the Indictment reads follows: of of County Essex, The Grand Jurors of State New Jersey, upon on the 19th of day their oath ANTHONY TYRONE MCDOUGALD present August, 1984 at the of Newark in the of Essex ... did City County prevent by performing or Bass act or means of force Walter Bass Maria from an from might providing or which aid in his or appre- information testimony discovery lodging charge burglary against a sexual assault or him hension in the 2C:29-3b(2)(3), of the Third N.J.S. crime contrary provisions Degree____ charged argues Eight him with two Defendant that Count notice, offenses, violating due-process right of the distinct against depriving right, him under the charges him and Constitution, jury. grand indictment State 3:10-2 did assert issue below. Rule Defendant not specified objections exceptions, mandates that with certain made before trial or else waived. the indictment be 160, (1985), DelFino, .2d60 we stated that 100 N.J. 495 A under Rule 3:10-2 rights, result a[ even of constitutional assertion, may ] failure of timely [t]he (1968). McKnight, What
waiver. State v. A.2d [243 240] * * * good cause for will the circumstances. upon constitutes delay depend underlying if must be an merits of the assertion Moreover, persuasive challenge good cause. is to be otherwise allowed for untimely
563 at 160-61, 495 A.2d [Id. 60]. proposed
Defendant has not any good delay. cause for his Because challenge does not concern directly defendant’s capital conviction, are willing suspend we less procedural good bars absent cause.
In addition defendant’s underlying assertion
unpersua
is
Eight
sive.
charged
Count
the defendant under N.J.S.A.
2C:29-3b(2),(3) which
a variety
criminalizes
of actions intended
Apprehension
to Hinder
or Prosecution. See N.J.S.A. 2C:29-3.
charge
McDougald’s
This
relates to
alleged motive to kill the
Basses in
preclude
order to
them from pursuing charges
against him
statutory rape.
for
Although
previously
we have
“separate
stated that
and distinct offenses cannot
charged
be
in
indictment,”
the same count of an
Jersey
State v. New
Trade
Ass’n,
8, 21,
(1984),
Waste
96 N.J.
Defendant also prove the State failed to Eight beyond Count a reasonable doubt violation of his due-process rights. We must determine here viewing whether the State’s evidence its be that evidence direct or entirety, giving circumstantial, the State the benefit of all favorable as testimony
well as all of the favorable inferences which could be drawn reasonably guilt charge a reasonable could find therefrom, a reasonable beyond (1988) (quoting v. 111 N.J. [State Palacio, doubt. 545 764 543, 550, A.2d (1967)).] Reyes, 454, 459, A2d 385 Throughout the trial there were numerous references to McDougald’s prosecuted belief that the Basses him wanted Howard, statutory rape burglary charges. Marilyn Bern- Simmons, ice and Antoinette James all testified to defendant’s pressed rape charges against statements the Basses had *34 Furthermore, own con- jury heard from defendant’s him. the Bass, killing repeatedly asked Walter before fession that he him, why, why We “why they trying to hurt me ... [?]” jury support that this evidence was sufficient believe in order to avoid finding McDougald killed the Basses argu- reject defendant's prosecution for other crimes. Thus we prove beyond a Eight failed to Count ment that the State reasonable doubt.
V. PENALTY PHASE ISSUES challenges penalty phase the presents various
Defendant charge on we find that the trial court’s of the trial. Because 2C:11-3c(4)(c)involving torture or aggravating factor N.J.S.A. penalty aggravated battery and warrants a new is defective also hearing, that issue first. Defendant phase we address c(4)(f) charging factors argues the trial court erred crimes) (mur c(4)(g) (murder escape detection other addition, process felony). In defendant der in the of a while instructing jury the erred the maintains that trial court regarding mitigating factors. 2C:ll-3c(4)(c) Aggravating
A.
Factor
did
the
of our decisions
trial court
not have
benefit
123,
188,
Ramseur,
2d
supra,
v.
N.J.
524 A.
State
(1987),
supra, 106
statute—that
this
factor exists if the murder
involved torture,
aggravated
aggrava-
of
or an
to the
mind,
victim. Torture or
depravity
battery
ted
to the victim shall be
if the defendant
intended to
cause,
found
battery
suffering
psychological
did in fact
severe
or
cause,
physical
pain
victim
to the victim’s
measured either
of
death,
prior
“severity”
intensity
or the duration of the
or a combination of both. Where the
pain,
pain,
greed,
revenge,
murder was not
or another of those
product
envy,
emotions
associated with
and served no
for the
murder,
ordinarily
purpose
killing,
the court shall instruct
on the
beyond
pleasure
meaning of
in this
context. For the defendant who killed for
depravity
specific
enjoyment
just
because the victim
to be in the
or for no
it,
area,
happened
just
reason at
must be able to reserve its most extreme
all,
kill, society
sanction.
*35
(footnotes omitted).]
N.J. at
The
in this
with one minor
is substan
Rose,
tially
charge
identical to the
held defective in
we
supra, 112
The
the
N.J. at
B. Sufficient Evidence to Resubmit find, however, that sufficient evidence was adduced We c(4)(c) factor support at trial the submission to sentencing proceeding. A could find at the new rational McDougald physical to and did cause severe intended suffering McDougald to his slit Mr. Bass’ mental victims. him. He left the room and back throat and stabbed then came bludgeon possible him is that Mr. Bass bat. It *36 physical pain coupled suffering the endured severe knowing grave danger step-daughter his wife and were Likewise, being McDougald injuries inflicted severe killed. Bass, her his of the bat inches into Mrs. and insertion three vagina accompanied by having for An statement “That’s great physical psychologi have toinette” could caused her if still to hear him. suffering cal she was able feel and Likewise, to jury may on remand sufficient facts have killing infer defendant’s intent torture Basses before repeatedly bludgeoned slashed and them. Defendant had killing victims before them. Walter Bass was awake and knew dying probably he that defendant kill his would also jury purposely wife. The could surmise that defendant awoke first Mrs. Bass with the blow to head and wanted her to point going Although know from that on that she was to die. interpreted there are facts that could be to contradict those c(4)(c), elements of there is sufficient evidence to allow issue to be submitted to the on remand. regarding depravi
There is also mixed evidence on the record
ty (e.g.,
killings
purposeless
that the
were
or that there was
mutilation).
post-death
avenge
Whether to
himself because he
him,
believed Antoinette James had caused his wife to leave
or
prosecution
rape,
argued
McDougald
to avoid
the State
that
Rose,
killings.
supra,
had a
reason for the
State v.
(State acknowledged
by
purpose
It in the sense of is mind defacing respect corpse, a could be sustained with murder of Maria Bass. In Ramseur we determined that de- pravity post-death requires that based on mutilation damage when that
the murderer to do intended] corpse physical harm is done the murderer has intended that it be done specifically upon distinguished aggravated is not from and torture battery by corpse. Depravity distinguished drawn line that is the moment of death. it is Instead, finely damage a the distinct mental state that causes a murderer intentionally longer being. believes that he is no a live human body N.J. at 210 n. 524 A.2d [106 188]. McDougald thought No firm evidence exists that Mrs. Bass pushed he slit her throat and the bat into her was dead when However, individually vagina. facts could seen those be together constituting aggravated battery as either torture and constituting depravity damage in the form of to a or else corpse.
568 Counting Aggravating Double of Factors
C. the submitted the argues next that State Defendant contrary multiple aggravating support to factors same evidence 123, 174, (1988) II), 112 A .2d Bey, (Bey to State v. N.J. II, sexual assault Bey Rose. evidence of defendant’s and c(4)(g) felony his the of and also was upon victim established e(4)(c). Recognizing of “the side with the the foundation that largest may practical advantage number of factors have before precluding sentencing jury,” yet aspect not same of the evidence) (and being the defendant’s conduct same from factors, support multiple aggravating re presented in we to the by requiring the trial court advise solved the dilemma jury: aggravating against the the it should not number of factors simply compare considering mitigating it than number of that is the same facts more factors, cognizant being to it be the same facts are used once, should jury aggravating than one factor. This result the more permits
prove aggravating it to each factor and should consider the evidence relevant prevent giving weight the when one from undue to' number of factors aspect aggravating II, v. [State defendant’s conduct factors. Bey, multiple supports 112 at 176, 548 A.2d supra, 887]. overemphasizing the way jury In this be deterred from will quantity aggravating factors. Rose, c(4)(f) supra, aggravating
Again in factors servant) detection) e(4)(h) (escaping (killing public were jury. argued Defendant had that the identi both found two cal evidence used make out those factors enhanced arbitrary, his violation likelihood that death sentence was may eighth amendment. Court concluded weight” weighed facts assigned have “inordinate to these against mitigating factors. The failure them twice led Bey instruct the under the II standard the Court prej impermissibly been may conclude that the defendant have right compromised to extent to a fair trial udiced and 525-26, 112 N.J. at mandating reversal of the death sentence. .2d 548 A 1058. *38 II, distinguishable Bey this case from Rose and
We find
fact,
practical
overlapping
instead of
in those cases one
because
facts,
factor
doing
duty.
was
double
In this case
inter-related
breaking
c(4)(g)
supported by the defendant’s
into
was
kill
apartment
purpose
with the
Antoinette James
Basses’
defen-
(independent evidence was offered for this at trial and
murder).
c(4)(f)
attempted
convicted for
Factor
dant was also
escaping
supported by
alleged motive of
detec-
defendant’s
Finally, factor
prior burglaries.
tion for sexual assault
c(4)(c)
manner in which the
focused on the violent and vicious
killed the Basses.
weighing
addition,
explain
jury
that its
the court did
numbers,
not “a
and was
of the factors was not controlled
process,”
required its careful and considered
mechanical
but
Nonetheless,
charge
express
the trial court
did not
judgment.
by the same
give
supported
factors
ly
jury
warn the
not to
On
weight,
mindful of that situation.
undue
and to be
evidence
jury in accord
charge
trial
remand we caution the
court
176-77,
II,
Bey
supra,
112 N.J. at
ance
our instructions
D. Factor court failed to dismiss charges that the trial Defendant aggravating factor adequately regarding jury instruct the “in killing while 2C:11-3e(4)(g),which involves a N.J.S.A. felonies. of one of several enumerated commission” McDougald attempted of already convicted jury he had when it considered whether of Antoinette James murder committing another parents process in the murdered her the Basses’ McDougald broke felony. plausible It is into and, pursuing while to kill Antoinette apartment order murder, instead. This parents killed her felony attempted possi- finding. It is also support c(4)(g) independently would kill Antoin- hand, McDougald planned to ble, on the other not beginning, so that he did very from the parents and her ette trying murder the Basses in the course of to murder Antoin- question jury. ette. is a for the That We find there was sufficient evidence adduced to allow factor c(4)(g) jury penalty-phase to be submitted to the at the rehear- court, however, ing. carefully We caution the trial to instruct necessary relationship pursuant on the that must exist c(4)(g) felony between the and the murder. Relating Mitigating Factors E. Issues proof 1. Burden of argues imposed
Defendant that the trial court an exces proof during penalty phase by instructing sive burden mitigat that the defense must “show” the existence of *39 ing factors evidence. He asserts that the statute reliable requires only any mitigat that a defendant come forward with ing disprove The must then this evidence. The evidence. State argues any higher on defense that burden contra principle jury venes the federal-constitutional that a consider “ ‘aspects of the defendant’s character and record and the ” proffered mitigation.’ (quot of the circumstances offense 605, 2965, Ohio, 586, 2954, ing 438 98 57 Lockett v. U.S. S.Ct. (1978). L.Ed.2d 973 sentencing concept preventing confuses the of a
Defendant
considering
mitigating
that
jury from
relevant
evidence with
Oklahoma,
proof.
Eddings
the issue of burden of
In
v.
455
104,
869,
(1982),
1
the trial court in
102 S.Ct.
71 L.Ed.2d
U.S.
determining defendant’s sentence had ruled that he could not
background
mitigation.
of the defendant in
consider the violent
Supreme
explained
the rule of
mandat
The
Court
that
Lockett
any
evidence offered in
ed that the sentencer consider
relevant
113-14, 102
876-77,
mitigation.
71
at 11.
Id. at
S.Ct. at
L.Ed.2d
may impose
The
did not
a state
a burden
Court
discuss whether
regard.
proof
on defendant in that
384,
(1988),
Zola,
1022
v.
112
548 A.2d
Court
N.J.
legislature
argument
defendant’s
that the
intended
considered
mitigating
factor
capital jury
any
“a
consider as
factor
438,
presented
has
evidence.”
at
which the defense
contention,
rejected
explaining
2d
The
this
548 A. 1022.
Court
jury
permitted
qualitative judgment
that the
must be
to make
mitigating
constitute
on whether
“matters
evidence
factors____”
necessary
overriding
serve
This was
Ibid.
a determination that
principle
jury’s
verdict reflect
that
fitting
punishment for
appropriate
is or
“death
is not
439,
Id.
Finally, note that the we should factor, c(5)(d)—mental or defect or intoxi- mitigating disease ability lawfully. to act impaired that defendant’s cation McDougald that was presented very little evidence defense of the The State rebutted intoxicated at the time murders. her McDougald testified that McDougald intoxicated. Ms. was night murders. The State “high” son from this fact her statement brought out she had omitted Also, resident the YMCA testified police. another *40 to the murders and subsequent she encountered defendant Likewise, drugs. influence of him to be under the not observed support finding a of a expert testimony was offered no necessary to interfere with degree of a mental disease or defect Moreover, jury did ability to follow the law. defendant’s defect for it found such a regard, in this the evidence consider (factor c(5)(a)). Accordingly, it cannot be said that exist did evidence offered qualify and failed to evaluate mitigation.
2. Admission Past Conduct of Defendant’s guise penalty-
Defendant contends that under the rebuttal, phase improper testimony of the Prosecutor elicited past mitigating his conduct. factors the One defense alleged McDougald suffering from an extreme was that brought depar mental or emotional disturbance about sought ture of his and son. The State therefore to show wife prior McDougald acting that even to the murders had been irrationally, and was even suicidal. state, alleged
In relation to this mental as as the other well factors, mitigating six defendant called witnesses. Debra Mt. Medical Jones from Carmel Guild Center testified that facility looking help defendant came to that he because was him, “having problems, a lot of his wife left he didn’t know [ ] do, [by] driving what to that he tried to commit suicide his [and] wall____” Campbell car into a brick William testified he building had witnessed defendant drive his car into a and then state, it, During I myself.” “Damn can’t even kill cross-exami- nation, prosecutor testimony elicited to the effect that Mr. Campbell neighbor acquaintance was a and of defendant’s Simmons, departure wife—a wife from Bernice whose different purportedly Vogel, caused the emotional disturbance. Karen worker, hospital significant social testified to defendant’s at- Wilder, premature tachment concern for his son. Debra mother, friend of defendant’s testified that she encountered the July defendant in and that on that he occasion looked “scared,” him, following “wild” and believed someone to be taking drugs. admitted to mother, Shirley McDoug-
The defense next called defendant’s
facts,
previously
McDougald
in the
ald. As
indicated
Ms.
length
testified at
on direct about defendant’s troubled child-
son,
hood. She also testified to defendant’s concern for his
learning
son
distress
Bernice Simmons and his
were not
going to return from South Carolina. She stated that
this
change,
began
irrationally (crying,
him
he
caused
to act
*41
point he
still,”
up”), and that at one
keep
“all wound
“couldn’t
the YMCA. On cross-exami-
her in her room at
tried to attack
that defen-
nation,
her assertion
prosecutor inquired about
attempt to
and on defendant’s
fight
tended to
school
dant
this,
of defen-
Following
he
into the area
her.
ventured
harm
informed
McDougald if she had
bigamy, asking Ms.
dant’s
Defense
already married.
Bernice
that her son was
Simmons
The
questioning as irrelevant.
objected
counsel
to that line of
McDougald’s credi-
to Ms.
responded that it was relevant
State
by not
protecting her son
bility, “whether or not
[she]
allowing him to
revealing marriage
that she knew about
already
knowing that he had
been
marry Bernice Simmons
purpose.
this
question
The court allowed
married.”
acquaintance of the
defense was an
final witness for the
The
defendant,
Winston,
that he had been
who testified
Donald
(1)
many
had seen
summer and
apartment that
the defendant’s
(3)
(2)
chanting and
had
heard defendant
lit and
had
candles
(4)
lashed
told him he had
crying
a crib and
had
him
over
seen
four rebut-
then called
breaking a television.
out
witnesses,
Bernice Simmons.
one of whom was
tal
husband,
her
his
her fear of
testified about
Bernice Simmons
prior
violent behav-
family
her
against her and
threats
assertion—communi-
testimony
the defense’s
ior. Her
rebutted
changed
McDougald was a
through its witnesses—that
cated
had, by
Bernice
her own
killed the Basses.
summer he
man the
testi-
Anthony McDougald. She
account,
afraid of
always been
her he
he had told
him of fear because
married
out
fied that she
denying
Japan. After
against him in
charges pending
rape
defense coun-
a mistrial and over
motion for
counsel’s
defense
regarding
limiting instruction
gave a
objections the Court
sel’s
Rose,
Although, unlike
Japan.
charge in
rape
use
evidence,
in-
these
character
present direct
did not
legitimately relat-
have
may be found to
of misconduct
stances
thereof)
(or
in defendant’s
change
absence
ed
both
family,
of his
departure
subsequent to the
personality
mother.
part of his
demonstrating
on the
bias
*42
Rose,
past
extensive evidence of the defendant’s
conduct
during
phase,
penalty
including
was revealed
the
racially-
his
purchase
shotgun
it,
motivated
of a
and"threats to use
incidents
school,
service,
of misconduct in
in
jail,
the
and in
and numer
physical
girlfriends.
ous acts of
violence directed at
We noted
admissible,
that to the extent this information was relevant and
purpose.
it was for
appropri
a limited
The Court observed the
limiting
situation,
ateness of a
in
instruction'
such a
and further
jury
commanded the
only
aggravating
consider
those
factors
specified by
penalty phase
capital
statute
the
of a
case.
Rose, supra,
506-07,
State v.
at
defendant’s conduct, to the extent offered to past except rebut detracting weight assigns mitigating as from factors, it factors. at 507-8, 548 A.2d [Id. 1058].
Because the trial court had failed to instruct
jury
of the
purpose
limited
it
which
could consider “the abundant
conduct,”
evidence of
past
defendant’s
the Court could not
improperly
conclude that it was not
weighing
factored into the
process. The Court held that in the face of that evidence and
capital
because that was a
proceeding,
necessity
“the
for a
precise
careful
limiting
jury
instruction to this
was clear
compelling,”
“prejudicial
and that its omission
beyond
was
a reasonable
doubt.” Id.
In this case we find that the trial court also should have instructed the that to the extent that the information was admissible, relevant and it purpose. was for a limited At the sentencing procedure, therefore, new give the trial court should proper limiting respect instructions with to these comments past conduct, about defendant’s and should further caution the only to consider aggravating specified those by factors penalty phase statute capital of a case.
F. Prosecutor’s Comments made characterizes numerous comments Defendant phase prejudicial trial as during penalty prosecutor First, during opening prosecutor, he asserts that the error. statement, sentencing responsi- jury’s view of its diminished merely bility by continually emphasizing that its function im- argues prosecutor that the fact-finding. Defendant next their jurors and diverted them from properly inflamed the issue,” general sentencing by “interjecting greater task Also, points he to remarks being protection society. being of a prison Trenton more during made summation about he is to be sent there “because “hell” if defendant were deterrence, references to He contends that these remorseless.” *43 remorse, prison community the constitute of and threats to lack into the nonstatutory aggravating factors the introduction on sentencing decision. assertions, weight places great the response to those
In of these object counsel to to most on the failure of defense penalty- the court’s the curative nature of statements and on prosecutor did not argues that the phase instructions. It role, properly that the court jury’s the and nonetheless trivialize concedes their verdict. The State explained significance the of society inappropriate. protecting were that the comments about prosecutor’s comments to be Although we find some of the objected only to his that defense counsel improper, we note Prison and mischaracterization reference to Trenton State of insani- equivalent as to the defense mitigating the factors of Moreover, have the benefit of our prosecutor did not ty. prosecutorial miscon- later cases on holdings in Ramseur and phase rehearing penalty that that on duct. We assume decisions. guided these later will be prosecutor’s comments Penalty Death Responsibility for Dilution of Jurors’ G. improperly court Next, argues that the trial defendant during charge at responsibility its jurors’ sense of diluted the penalty phase, and During charge at the penalty phase. 576 prepared, reference to the verdict sheet the court had explained jurors:
trial court to the aggravating If have checked one or more factors and ... have checked you yes mitigating all of the factors then no further and no, return this you proceed you verdict sheet to the court as verdict. your instruction, argues, That contravenes the fundamen- principle jurisprudence capital jurors tal that the must make judgment fitting appropriate a “normative that death is the trial, punishment.” objected At charge defense counsel position jury because “it is our any that the doesn’t need to find mitigating sentence,” requested to recommend a life that option. the verdict sheet reflect that The court denied the request. II, supra, precisely
In Bey
we found
the same sort of
explained
instruction
jury
erroneous. We
that the
could have
weighing
its
merely
believed that
of the factors was
a mechani
charge
cal function. The
could have thus “failed to communi
jury,
‘law’,
cate that the
not the mechanics of the statute or the
ultimately responsible
imposition
penal
is
for the
of the death
ty.” 112
A. Information Other Relationships with Women prejudicial concern argues Defendant information relationships wrongfully was admitted at ing his with women phases proceeding in contravention of Evidence both that he was regard points 55. In this he to disclosure Rule crimes, co-participant in these “seeing” year his thirteen old headquarters himself in police he to turn that when arrived at dating lady,” accompanied by “young a that he he was early months 1984 while also Marilyn during Howard carrying on bigamously marriéd to Bernice Simmons and James, he had relationship Antoinette and that sexual he as the introduc four children. Those characterized fathered wrongs. of crimes and/or civil tion be more objection to that information would Defendant’s impact on under Evidence Rule properly prejudicial based its rise to an infer give those facts not adduced because were charged. provides that guilt to the crimes Rule 55 ence of wrong person a crime civil that a committed “evidence occasion, prove disposition to specified is inadmissible inference that wrong or civil as the basis for an commit crime specified wrong on another a crime or civil he committed prove fact some other but ... is admissible occasion issue____” attempts to made in None of those disclosures was question, but crimes prove that defendant had committed in relation other issues. properly presented they were *45 578 admissibility largely a matter within the is
determination Allison, N.J.Super. State judge. discretion of the trial We find that trial court (App.Div.1985). 504 A.2d admissibility of these allowing did not abuse its discretion relationships defendant. with defendant, detailing to locate the
In the course of his efforts Kisha, a Eutsey he had located Detective told the “seeing.” Defense counsel young woman defendant had been information, the trial moved for a mistrial based on that but motion, explaining “I see how that denied the don’t court defen- the defendant.” The detective also noted that prejudices police headquarters accompanied by another dant arrived at generally All are relevant to the woman. of those disclosures guilt charged. the crimes The fact that issue of defendant’s young to whether the co-participant very is is relevant purposefully, and the efforts of knowingly acted subsequent arrest Eutsey Detective to locate defendant and his issue of defendant’s similarly Kisha are related to the overall validly its identification. The trial court exercised discretion respect to these facts. had he was Ms. Howard testified that defendant told her James, Antoinette and that the having sexual relations with charges against him. held pressed rape The court Basses dating Ms. Howard was that information that defendant was credibility, assessment of Ms. Howard’s relevant relationship overly signifi- nature of the was not cant. bigamy defendant’s was derived from various
Evidence of presented by dur- Campbell William the defense sources. phase testify about defendant’s ing penalty of the trial attempt, he said occurred as defendant left the suicide which wife, despair departure of proof of his as of his over the home friendly and his son. In an effort to show the Bernice Simmons bias, relationship any corresponding nature of their Campbell how he knew defendant. Mr. asked the witness *46 through respective acquainted their they were explained that testimony the wife Mr. that prosecutor The then elicited wives. from Bernice referring a different woman Campbell to was was that defen- Simmons, of this woman that it was the home car into a wall. De- driving his immediately before dant left prosecu- the wife. The questioning about objected any fense “put testify him on to had responded that the defense tor into a brick wall after drove his car man came out and questioning. permitted The court talking to his wife.” the inference that clearly proper to rebut information was That Simmons, as Bernice as well attempt related to the suicide was any permits Evidence Rule credibility of the witness. to the credibility. any issue relevant to party to examine witness McDougald if she had told Ms. Similarly, the State asked the two other wife before about defendant’s Bernice Simmons this issue was prosecutor asserted that The had married. was showing “the witness credibility in to her relevant that Ms. testified Later Bernice Simmons protecting her son.” marriage. The her the other McDougald had in fact told about testimony is McDougald’s trial inconsistency in Ms. use of this impeachment, and use subject to A defense witness is proper. DiRienzo, v. proper. is State inconsistent statements prior (1969). 360, 383, A .2d 99 53 N.J. also children was had other that defendant
Finally, disclosure infant losing his his distress over the extent of proper to rebut that Bernice Sim brought the fact counsel out son. Defense while of defendant’s children to another given birth mons its Moreover, court exercised the trial in South Carolina. unduly not determining these facts were discretion Only defendant, properly admitted. and therefore prejudicial to rulings will those be “palpable” is of discretion an abuse where Inc., 94 Prospect Shop-Rite, Mount disturbed. Ostroski (App.Div.1967). 374, 382, .2d 545 228 A N.J.Super. Photographs B. Admission photographs numerous color objects to Defendant also conjunction stages of his trial. admitted at both guilt phase, the intro- testimony at the State Detective Conti's photographs four of the victims taken duced into evidence depicted of these Walter Bass as he was the crime scene. Two body of Maria found on the kitchen floor and two were she found in the front bedroom. defense Bass as original “eight objected enlarged photographs from the by eighteens,” unduly inflammato- size to “fourteen as ten” Further, adding nothing the defense asserted ry and relevant. size, that, photos unduly preju- were regardless of the these should have been admitted. The dicial to defendant and not merely responded enlargement that the facilitated refer- witnesses, did pictures by testifying ence to and that this prejudice. The trial court any unique not create or additional *47 enlargements “particularly inflamma- agreed that the were not the had tory,” pictures that the were relevant to the case State disputed, prejudice defen- prove, to whether or not and that to S-12, repetitious All but preclude dant did not their admission. S-13, were admitted. eight autopsy guilt phase, Later in the the State offered color photos testimony the of Assistant Medical Exam- relation to objected strenuously iner Melczer. The defense to the use of alleging they highly prejudicial, photographs, these were repetitive previously pictures, introduced crime scene and of the enlarged. Although preclud- again unnecessarily the State was 18s), using enlargements (apparently 16 ed from the offered X by them were nonetheless ruled admissible the trial most of photographs Bass’ head court. Two of those showed Walter those, finding not upper and torso. The court admitted them unduly repetitious previously pictures admitted of Mr. Bass home, fatally prejudicial, instead as he was found in his nor but purposeful “highly proving knowing relevant to murder.” head, Photographs by her shaved the of Maria Bass showed Examiners, injuries Her head was Medical and the thereon. graphically showing gaping propped back which resulted objected The to this intervention and throat wound. defense probative photos. to The court asserted a lack of value these held:
[********] things Again, highly to the issue of all of these are relevant purposeful knowing at the hands of the who committed what to her person [,] happened this offense. have I think be somewhat I think relevance. obviously may obviously they they photographs again prejudicial in a I don’t case, such are criminal but as any injury the the think are meant to be show to inflammatory. person. they They the one show a different one. are They obviously Each of them necessary injury this offense committed to make a fair evaluation manner [sic] I will them. and therefore, permit outweighs prejudice the far the to I believe that value possible probative again the smaller I would ask court mark However, reporter defendant. photographs and I don’t I think conditions because they adequately depict it’s here. think have necessary blowups Bass Finally, autopsy photographs showed Maria two other protruding from lying on her back and stomach the bat photograph was vagina. The asserted that this her McDougald in order insert the probative the effort exerted bat, physically it removed point “to the had to be doctor,” first be moved. that the underwear photos in that these “what probative value showed court found bat,” again go through to insert the means had to he except unduly photographs All the they prejudicial. were not repetitious into were admitted evidence. those which were into evidence all of penalty phase, At the the State moved guilt including the during phase, photographs admitted *48 guilt the phase. the had excluded at photographs that court pictures. The court again objected the Defense counsel ag- they probative of objection and found were overruled the e(4)(c) they aggravated bat- proved gravating factor because admitted they held were relevant and tery. The court that them. photos in both admission of the contests the
Defendant highly trial, prejudicial, arguing they that were phases of the value,” that issues and the only probative flimsiest “the 582
they
prove
adequately
covered
other evidence.
went to
were
580,
(1960).
Walker,
567
166 A .2d
State v.
33 N.J.
victim of a crime rests
photographs
The
of
of the
admission
court, and the exercise of its
in the discretion of the trial
palpable
not
in the absence of a
discretion will
be reversed
420,
396,
283
victim that chest, face, pictures and victim on floor broader argued photographs that the kitchen. Defendant were cumulative, explained The prejudicial court that irrelevant. only tend cause of death although photographs that to establish testimony present unnecessary ample of this is also are where ed, photographs were introduced to “here the show vicious purpose knowledge ness of the attack in order to establish support charge opposed manslaughter as to a the murder 250, N.J.Super. 224 at 540 A 201. The court conviction.” .2d merely photographs further that because are cumulative noted (or justify) explained: It does not mandate their exclusion. showing knowing had assumed the burden of State purposeful gruesome photographs fact in their revelations and the that were murder, legitimately does not detract from the fact were State’s they part state of mind. From them the could infer of defendant’s criminal proof it the attack was such convulsive could performed only ferocity knowing to cause 224 [Sanchez, have of a death. been product purpose (quoting Micheliche, 201 220 N.J.Super. 250, A.2d N.J.Super. (App.Div.), (1987)).] 109 40, A.2d 41 certif. 532 A.2d den.,
583 Bucanis, 45, (1958), In State v. 26 138 .2d N.J. A an autopsy photograph exposed of the victim showed abdominal knife, organs instruments, sponge and a and other and also organs pervasive removed to one side. We noted the discretion admissibility, explained: of the trial court to determine but judge judicial is the trial exercise a modicum of sound [It [will] presumed] gruesome discretion and exclude that was or any picture unusually repulsive admitting signifi- and had little evidential those which value, would be of only guilt cant the assistance to its deliberations as to the or innocence of the prejudicial. and which were not unduly at 138 A.2d7 [Id. 39]. photograph question
We held that the should have been excluded, only but that when a defendant has been “substan- tially prejudiced” does it constitute reversible error. Rose, supra, autopsy picture showing an entry during of the wound was admitted the trial court guilt phase. general normally We cited the rule that the trial court has discretion over these determinations. We held that prejudicial potential because cumulative nature of evidence, concluded, it should have been excluded. We however, “in that the error was harmless view of the over whelming guilt.” 112 evidence of defendant’s (erroneous photographs physical A .2d 1058 admissions of clearly capable producing unjust an result. evidence “not R. 2:10-2.”). close,
Although question very do find that the is we not admitting photographs discretion in trial court abused its properly guilt penalty phases. The trial court either the size and context and did not admit all the considered their guilt phase, photo- In the these photographs into evidence. killings done prove offered to were graphs were Likewise, penalty phase, the purposefully. in the knowingly or aggravating factor to establish photographs were relevant suffering before c(4)(c), intent to cause severe defendant’s depravity. show death or else to *50 CONCLUSION VII. sen- Defendant’s conviction is affirmed. judgment of to the the matter is remanded is and to death vacated
tence
resentencing.
Law Division
concurring
separate opinion
has filed a
HANDLER
Justice
part.
in
dissenting
part
in
and
part.
HANDLER, J.,
dissenting
concurring
part
the murders of
convicted of
case defendant was
In this
penalty hearing wherein
After a
Bass and Maria Bass.
Walter
aggravating
beyond a reasonable doubt
jury found
respect
to each
mitigating factors with
outweighed
factors
sentences. The Court
killing,
imposed
trial court
dual death
related offenses
and those for
the murder convictions
affirms
charging errors on
due to
the death sentences
but reverses
2C:11-3c(4)(c). I
in the
concur
aggravating factor N.J.S.A.
sentences must be reversed.
judgment that defendant’s
Court’s
was no rational basis
that there
The Court concludes
charge
serious-bodi-
support
a
presented at trial
evidence
the assaults as
I
that the nature of
ly-injury murder.
believe
relationship
involving
surrounding
defendant’s
as
evidence
well
properly-
a
provide a foundation on which
the victims
with
rationally
concluded that the defen-
have
charged
could
bodily injury on his
grievous
design was to commit
dant’s
consequences of his
to the ultimate
while indifferent
victims
necessary
charge
Therefore I believe Gerald
actions.
indispensable.
on the issue
determination
aggrava
that the
disagree
the Court’s conclusion
I also
aggravating
factor N.J.S.A.
battery/torture component
ted
jury at a second
2C:11-3c(4)(c) may
resubmitted to the
be
review of the
hearing.
I
the Court’s
believe
penalty-phase
indulgent
presented is too
weight
proof
record to assess
State,
reducing
effectively
the standard
and deferential
sufficiency.
Furthermore,
appropriate
I believe it is
in each of the Court’s
capital
capital
my position
Jersey’s
to reaffirm
that New
cases
principles.
punishment statute violates state constitutional
DiFrisco,
253, 283,
(1990)
New
defendants cannot be
corresponding
if
intent is found to be
penalty for murder
their
purposefully to cause death.
anything
knowingly
less than
Gerald,
40, 80,
(1988). If, within
549 A .2d792
*51
trial,
presented
proofs
pro
exist that
body
the
of evidence
at
jury
for a
of a lesser-included
vide a rational basis
verdict
offense,
constitutionally
is
entitled to have that
a defendant
Ibid.;
Coyle,
jury
offered for
deliberation.
State v.
alternative
(1990);
194, 222-223, 574 .2d951
see
v.
119 N.J.
A
State Crisan
265,
(1986).
tos,
276,
jurisprudence
102
508 A .2d167
Our
N.J.
principle that trial fairness is
recognizes
supremacy
the
of the
jury.
dependent
adequate
appropriate
and
instructions to the
on
133, 148,
(1986)
Grunow, 102
concurring
116
dissenting);
N.J.
Hunt,
(1989) (Handler, J., dissenting); State v.
The record in this case reveals a rational basis for the Gerald charge. guilt-phase The State’s evidence showed that defen- through primarily dant and the victims were associated daughter, engaged in victims’ with whom defendant had parents’ antago- relationship despite objections. her sexual relationship parties nism as a result of this escalat- between murders, preceding particularly when the ed the months parents daughter’s supposed pregnancy. their Ma- learned of police forcibly after defendant had ria Bass twice called home, say planning entered her and was heard to she was press charges against him sexual contact with her related to daughter, anger anxiety, all of which caused “get” he them. the same time for which vowed About couple’s him took the newborn son defendant’s wife left *53 her, a event defendant blamed on Basses traumatic daughter. and their statement, deadly reciting the encounters and
Defendant’s Basses, supports on the the infliction the various blows sought reciprocate for the proposition that defendant harm him, while perceived to have been inflicted on unconcerned and, he confronted Walter Bass coinciden- about results. First chest, slashing stabbing repeatedly his and his tal to throat “trying to As why he and his wife were hurt asked [him].” floor, fell to defendant ceased that attack. At Walter Bass accomplice’sinstigation begun his Walter Bass because room, crawling returned and hit Walter with out back he equally The on Maria Bass are the baseball bat. assaults grave vengeful of a intent do harm. Defendant indicative head, a series of to Maria Bass’ slashed her inflicted blows throat, body, offering into her as and forced the baseball bat assault, explanation having for the last Antoin- “[t]hat’s Likewise, murder ette.” defendant’s statements after the evi- died, recognition only dence that the victims had not that his objective. death was conscious not the where of the blows are of lethal This is case all DiFrisco, execution-style killing in quality, like the 2d this a supra, 118 N.J. 571 A. 914. On record could objective injure primary that defendant’s conclude perceived people maim these in return for the harm he they him, mayhem them to physical had caused to inflict on they mentally, suffer same extent had caused him to without they lived concern for whether or died. dispute is no that the assaults the victims were
There
However,
exceptionally
cruel.
the extent of brutali
brutal and
ty
is not the test of whether or not
rational basis for
spectrum
charge
of intent on
serious-bodily-injury
exists.
kill
which the distinction
intent to
and intent to cause a
between
injury is
difference
bodily
victim serious
too narrow
too
summarily
except
option
any case
subtle to foreclose
*54
unequivocally precludes
where the evidence
an inference that
bodily
the defendant intended to
injury
inflict serious
on his
victim while
to or
oblivious
ambivalent about the ultimate
the
in
Pennington,
result. As
Court admits
119
N.J.
547, 562-563,
(1990):
.2d
575 A
finding
injury
is not whether a
intent
to cause serious
is
question
bodily
finding.
but whether
the evidence
a rational
for such a
If
likely,
basis
provides
reject
should have been
to
so,
or
that alternative.
permitted
accept
Given the inherent
of mental
the detzermination of defen
states,
ineffability
jury.
dant’s
intent is best left to the
Crisantos,
N.J. at
specific
284,
supra,
(O’Hern,
concurring
dissenting
part).
J.,
The Court’s
reveals a fundamental
serious-bodily-injury
of the “intent” element of
murder. That
crime entails the intentional infliction of wounds on the victim
death,
to
penal
sufficient
cause
and carries the maximum
consequence permitted by
capital punishment.
law short of
Killings involving
culpable,
less
nonintentional mental states
proscribed by
penal provisions,
are
other
such
as
man
Moreover,
slaughter provisions.
practical
the line between
certainty
purposeful
that death will be the result of actions and
infliction of wounds sufficient
to cause death is blurred.
Nevertheless,
profound consequence. Only
the distinction is of
kill,
opposed
the defendant
seeks to
as
to
who
the defendant
injure
is
who seeks to
but who
indifferent
to the victim’s
critical, then,
jeopardy, may be sentenced to death. “It is
that
given charge
be
that draws the distinction between
another,
one who intends the death of
and is therefore death-eli
to,
gible,
bodily injury
and one
intends to cause serious
who
but
of,
Hunt, supra, 115
at
not the death
the victim.” State v.
(Handler, J., dissenting).
By joining
intent-to-kill murder and intent-to-inflict-seri
both
ous-bodily-injury murder into one count of the indictment and
crime,
they
as
one
effectively trying the case
if
were
“fundamentally
misin
misled
in this case
indictment
[and]
Wein,
charged.”
as to the crime
State v.
formed
accused
491,
(1979).
496,
591 prepare be able a defense. The indictment this case distorted crimes, the factual elements of the and thus did not adequately “give ‘defendant pre notice of what he must [the] ” pare to Boratto, 506, defend.’ 518, State v. 80 N.J. 404 A .2d (quoting Lamoreaux, 204, 207, 29 N.J.Super. (App.Div.), A.2d 68 aff'd, (1954)). 16 N.J. 107 A .2d729 On that basis defendant is also entitled to a reversal of his convic tion for murder.
II.
disagree
I
with the Court’s assessment of the sufficiency of
the evidence
aggravating
c(4)(c).
factor
The Court acknowl
edges,
must,
as it
that the
given
instructions on that factor
pre-jRamseur
this
trial constitute reversible error. The Court
identifies the
charge
deficiencies in the
surrounding
as
two-prong showing
that must be made
beyond
the State
respect
reasonable doubt
synonymous aggravated
battery/torture
concept.
566-567,
Ante at
2d 441. In
A.
Ramseur,
(1987),
State v.
106 N.J.
524 2dA. 188
the Court
aggravated
held that
battery/torture
contemplates an intent
distinguishable
antecedent to and
from the intent to kill—there
„.
proof
must be
that defendant intended to cause his victims
gratuitous
suffering.
words,
In other
proved
the State must
that, in inflicting
assaults,
the various
defendant had an inde
pendent purpose
suffering.
to cause
explained
This was not
correctly.
wholly
case,
Such
lacking
evidence is
in this
how
*56
ever,
component
and
thus
of the factor should also be
See, e.g.,
foreclosed on retrial.
Biegenwald,
State v.
110 N.J.
521, 542,
(1988).
The Court draws a novel and erroneous distinction between
aggravated battery and torture. The
appears
former term
now
physical suffering
to describe
and the
suffering.
latter mental
565-566,
at
See ante
tion the two between 188, language ordering of the Court’s definitional A.2d contemplate the would seem to reverse: aggravated if or the victim shall be found the defendant Torture battery psychological or and in fact severe cause, pain intended did cause, physical death____ suffering to victim to the victim’s prior 524 A. 2d Ramseur, v. N.J. 106 at [State 211, 188.] supra, sufficiency of the State’s goes on to evaluate the The Court aggravated battery/torture guilt-phase respect evidence jury at aspect may be submitted to and concludes either Bass, respect subsequent penalty hearing. With to Walter and, he various stab wounds the Court notes that sustained kitchen, starting was struck with the after to crawl toward bat, that Mr. possible “It is Bass endured and concludes: coupled psychological suffering of physical pain with the severe danger step-daughter grave knowing were his wife and Likewise, 566, at killed.” Ante being at 577 A.2d 441. injuries on Mrs. hypothesizes that the severe inflicted Court “ statement, Bass, along accompanying with the ‘[t]hat’s Antoinette,’ great physical her having could have caused suffering if was still able to feel hear psychological she at 441. him.” Ante at 577 A.2d exclusively of the victim’s The focuses on the nature Court analysis is a injuries. patently is from Court’s What absent any tangible proving evidence defendant’s intent. discussion of 414, 558 Hunt, supra, N.J. at A.2d 1259 See State (Handler, (evidence J., dissenting) support insufficient to c(4)(c) “[ajside because the submission of factor shotgun had fired the and was from evidence that defendant devastating injury, inflict knowledgeable capacity about its intention cause proof that defendant’s was to there was no [the (quoting pain suffering, rather than to kill him.” victim] Rose, 1058)). supra, Con- State v. A.2d intent, the Court states: cerning defendant’s bludgeoned killing the victims before slashed and Defendant repeatedly dying and knew he was that defendant Walter Bass was awake and them. surmise could that defendant also kill his wife. would probably
593
awoke Mrs. Bass
first blow
the head and wanted her to
purposely
going
Although
know from that
on that she was
to die.
there are facts
point
c(4)(c),
that could be
to contradict
those elements of
interpreted
there is
sufficient evidence to allow the issue to be submitted to the
on remand.
[Ante
(emphasis added).]
at
II. The foregoing impel part reasons me to concur in and dissent part opinion. from the Court’s affirmance, For vacation and remandment—Chief Justice CLIFFORD, HANDLER, POLLOCK, WILENTZ and Justices O’HERN, GARIBALDI and STEIN—7.
Opposed—None. majority notes “[a]t prosecution’s essentially correct.” version of facts However, 437. defendant must 577 A.2d at be Ante given reappraise his defense and marshall evi- the chance light subsequent of the clarification of law under dence presentation failure to undertake the of evidence Gerald. The legitimately support serious-bodily-injury murder cannot prejudice his fairly against defendant or claim be held proper instructions. retrial under neces- ignores fact at trial defendant was The Court ignorant significant distinction sarily understandably view, my forms of intentional murder. between the two proceeding under such misinformation cannot be foundation