*1 A.2d JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW MOORE, SAMUEL LEON DEFENDANT-APPELLANT. Argued May January 23, 199 0 Decided 1991. *5 Defender, Turner, Deputy Assistant Public E. Jacqueline II, argued the Astore, Defender Deputy Public and Matthew Defender, Caraballo, at- Public appellant (Wilfredo cause for torney). General, argued the Attorney Hulett, Deputy
Nancy A. Attorney (Robert General Tufo, J. Del respondent cause for Jersey, attorney). New delivered opinion of the Court was
O’HERN, J.
1987, four months
capital case was tried
June
This
Breakiron,
108 N.J.
our decision
before
pivotal ques
(1987).
is crucial because
The date
A. 2d 199
diminished-capacity
application
in this case is
tion
we
Breakiron
under
2C:4-2.
established
N.J.S.A.
defense
*6
though
imposed
the
proof
ruled that even
statute
a burden of
defense,
on the defendant to
diminished-capacity
establish the
imposed
only
to
the burden
show
the
of the
existence
defect,
mental
or
the
disease
that
disease or
would
defect
negate
criminal
interpretation,
a
mental state. That
con
we
cluded,
pass
would
constitutional muster
imposed
because it
no
disprove
on the defendant to
an
burden
essential element of the
fact,
charged.
point
crime
In
of
if
even this case had
tried
been
after,
with, Breakiron,
and in accordance
it would still contain
a federal-constitutional flaw—at least in the view of the Third
432, 443,
Beyer,
denied,
Circuit. In Humanik
F. 2d
cert.
-,
(1989),
U.S.
110 S.Ct.
I killing of a shocking hammer particularly case The involves as the denouement eighteen-month-old child wife and her young breakup. purposes appeal of a marital For of this we shall accept necessarily endorsing specific gen- without terms the eral recital of the events set forth in the State’s brief. 29, 1986, place Sunday evening,
The murder took on June Street, Couple’s apartment at 207 South Harrison East Orange, Jersey, following family outing New in an ended argument and the death of the wife and child at the hands of the husband father. union, seemingly happy marriage began
At first a wife, Melva, early complained deteriorate in 1986. (he manage- defendant’s hours outside the home at work held a position catering rial in an Airport), airline service at Newark complained housekeeping. while the husband of the wife’s De- spite the fact pregnant early that she had become spring Melva told a friend in the of 1986 that thinking she was leaving Although complained wife, the defendant. he of his defendant told a friend that he would not leave his home.
The situation worsened when Melva learned that defendant co-worker, having an affair with a to whom we shall refer name, her first Lizzette. planned Defendant and Lizzette up housekeeping together. set appears It that defendant want- ed family apartment Melva out of the that he so and Lizzette occupy plan could it. The was that Lizzette would move into apartment Sunday, defendant’s on June 1986. day family That was the last member of his would *8 occupy apartment. Sunday, Kory, That Melva and her eighteen-month-old son, spent had not moved out. Defendant day Kory park. they with Melva and at a When arrived p.m., home at about 9:00 arguing. defendant and Melva started argument fight, exchange became a an of recriminations picked up hate-filled words. Defendant a hammer and repeatedly According struck Melva with it. to the forensic pathologist, twenty defendant struck more than blows to her skull, spattering throughout apartment. blood and brain Melva, killing Kory. course defendant killed He claims hallway Kory’s body was found on the that it was an accident. mother, right body his whose three feet to the floor about mother doorway. Blood from the lying in the bathroom approximately p.m. 9:30 By overalls. was found on the child’s dead. both were telephone apartment rang. in the It was this time a
About Melva, White, Ennis asked for Ennis a friend of Melva. When Defendant said he did not know where she was. defendant paper bag and put shirt and shorts into a then his bloodstained off himself. wiped the blood Lizzette, planning to move pick up then who was
He went told her apartment. Harrison Street Defendant into the South work, he stop they at work. When arrived at that he had to off hid bag his clothes out of the trunk and paper took the with if it better building. He Lizzette that would be them the told motel, moving night a After her into a they spent the at motel. clothes, work, bag place his retrieved he drove back to towel, into a in an abandoned including the and threw it barrel roof of the hammer onto the building. He also threw the to the building. eating, After defendant returned abandoned overnight Lizzette. remained with motel and a worried following morning, Monday, June theOn help of apartment with the gained access to the friend of Melva the scene. police were at superintendent. At 8:15 a.m. robbery. burglary, or entry, of forced They found no evidence palm print in bloody and a telephone on the They found blood apartment early Mon- Defendant arrived at the the bathroom. told the husband. He morning. soon identified as day He was night Royal Inn motel police he had been at the police Defendant did not tell girl his friend. before with police He was taken to the p.m. phone call. about the 9:30 Following an emotional he denied involvement. station where Lizzette, that when Mel- defendant told her confrontation with him, he beat her with got he mad and yelling started va (the Kory?” baby), defen- “why asked When Lizzette hammer. *9 He dant broke down and cried. said that he did not know. He only said that he wanted to be with Lizzette. Defendant then gave police admitting a written confession the facts out- Kory jumped lined He contended that above. had on Melva to process Kory “cover her” and was struck accident. police He told the how he had abandoned his clothes and the weapon. police police murder The retrieved these items. The print palm identified the as that of defendant. guilty capital
The found defendant of two counts of weapons-related murder and counts of two offenses. sentencing proceeding, At the aggra- State asserted two (1) vating on factors each murder: that the murder was out- rageously torture, wantonly depravity vile in that it involved mind, assault, aggravated 2C:ll-3c(4)(c) (in or an N.J.S.A. c(4)(c) Kory’s agreed case the State limit factor to (2) depravity); and the murder was committed while defendant engaged murder, in the commission of another N.J.S.A. 2C:ll-3c(4)(g). murder, Concerning Kory’s the State asserted depravity as an alternative to of mind that defendant had 2C:ll-3c(4)(f). escape committed it to detection. N.J.S.A. The jury unanimously presence aggravating found the of the two factors, c(4)(c) c(4)(g), killings, unanimously and as to both mitigating record, found as prior factors defendant’s lack of a 2C:l-3c(5)(f), factor, mitigating N.J.S.A. and the catchall 2C:ll-3c(5)(h). juror S.A. One found defendant had under been disturbance, the influence of extreme emotional N.J.S.A. 2C:11- 3c(5)(a). jury unanimously beyond The found a reasonable aggravating outweighed mitigating doubt that factors Consequently, factors. the defendant was sentenced to death. 2:2-l(a)(3). appeal right to us is of under R.
II Capacity Diminished Issue imposed him Defendant contends that the trial court on proof capacity thereby burden of of a diminished violated *10 due-process right his prove to have the State every each and charged element of the beyond crime a reasonable doubt. 2C:4-2, N.J.S.A. which establishes the defense of diminished capacity, provided at the time of this trial: Evidence that the defendant suffered from a mental disease or defect admissible whenever it is relevant the defendant did not a prove have state of mind which is an element of the offense. In the absence of such it evidence, defendant had no may presumed mental disease or negate defect which would a state of mind which is an element of the offense.
Mental disease or defect is an affirmative defense which must be a proved by of the evidence. preponderance Breakiron, As we held in supra, State v. 108 N.J.
A. 2d the statute does not proof shift the burden of to the disprove Rather, defendant to an essential element of the case. only defendant needs to do says: prove what the statute the existence of a mental disease or defect. We believed that this was constitutional. Appeals,
The Third Circuit Court of Beyer, Humanik v. supra, 871 F. 2d ruled that an instruction that a defendant proving has the burden of the existence of a mental disease or by preponderance defect a him evidence denies or her process view, due imposition of law. its of such a burden on the due-process by defendant violates the clause acting may as a “filter” that jury’s bar the consideration of that evidence when the time comes to decide whether the State has proved, doubt, beyond a reasonable the criminal state of mind that is an essential element of the crime. Id. at 443.
Because Supreme certiorari was denied the United States decision, Wilentz, Court from the Humanik Chief Justice on Court, behalf of this issued a memorandum on December 1989, instructing apply all courts to the Humanik decision in pending appeals in order to avoid an intolerable conflict be- tween state and federal courts in the circuit. The memorandum course, provided: require “Of that fact does not reversal of every presenting capacity appel- case a diminished issue. Other principles may late dictate different result.” See N.J.L.J. (1989) memorandum). (summarizing
Therefore, (1) we must resolve two issues in this case: charge, and, so, (2) whether there is error in the if whether charge requires error reversal.
A. charge initial to the capacity on diminished clearly placed seems to have the burden on the defendant disprove an essential element of the charge crime. The initial follows: suffering The defendant contends that he was from a mental disease or *11 defect which made him of the state of mind to be for incapable required proved aggravated manslaughter, manslaughter a murder, or of a possession weapon.
That knowingly is, he that he was able to act says or purposely, recklessly; acting that his mental disease or defect him from with of those prevented states of mind. negate Mental disease or defect which would the state of mind which is an element of the defense is never assumed. as I told Indeed, you, indeed, people forming are of the intent. capable requisite When the defendant contends that he does not have the requisite capability, prove by preponderance evidence, (1) he must the that, that he has the of (2) prevented that it was mental disease or defect, and such a nature it that acting purposely, knowingly him depending or on which state recklessly, from or states of mind are one of the elements of the offense that is under consideration. The State does not have the burden of on this issue. The burden persuasion is on the defendant. And if have found that the defendant you did an act in accompanying then must consider question, his state of mind you the act or acts. negated If the defendant has the mental disease or defect and that it proved guilty his to form the state of must ability mind, find him not with you respect to such crime. [Emphasis added.] charge It is true the respects in other conveyed to the jury requirement the proof the burden of to establish each always essential element of the crime remained on the State. Early charge, in its the court instructed the that “the proof upon burden of prove the State to the elements of a crime, and it never shifts. It throughout remains on the State addition, the whole trial of the In case.” in concluding its charge on capacity, the defense of diminished the court told the jury: bearing including All evidence on that, all mental circumstances, condition, and state of be mind, considered. In other even if a has may words, defendant failed to that he was not to have a able state of mind reason prove particular by job of a mental or does disease not relieve State of defect, the its to prove the in time in the
that,
fact,
defendant had the
mental
question,
requisite
knowing-
state when
the
he took
actions which are
if
crimes,
done
or
purposely
ly-
However,
fact
charge
the
remains that
the
contradictory.
and
Contradictory
charges
inconsistent
inherently
are
inade-
quate
they
“create
juror
a reasonable
likelihood that a
understood
the instructions
an unconstitutional manner
* *
Beyer, supra,
Humanik v.
1975 n. responding 85 L.Ed.2d 359 n. 8 to a jury request explain insanity diminished-capacity defenses, court recharged jury: general guilt, As a of his denial of defendant maintains he was not part guilty charged, of the crimes either reason of diminished or lack of by capacity legal or reason or both. Those are capacity, by insanity, separate concepts, things again things but have certain and we’ll common, mention they common. prejudices against law First of entertains all, no defenses of diminish- ed On the if the defense-^if either defense is capacity insanity. contrary, the law an established, allows defendant benefit of it sufficiently * * * criminal all acquittal responsibility. Under our all law, sane, are assumed to be and are assumed persons forming the state of for capable mind, therefore, requisite responsible
their conduct until the is established them. and diminish- contrary Insanity proving ed are and the either defenses, affirmative burden of them or capacity of them a the of the evidence is on the defendant who asserts by preponderance defense. And later: And if the in with evidence were be balance to mental therefore, respect effect, or its defect,
disease or the has the then defendant who burden of proof with has not the thereto met burden. respect [Emphasis added.] And: When a he does the must defendant contends that not have he capability, (1) the or a of the that he had mental disease
prove evidence; by preponderance acting prevented (2) it nature that was such a that it him defect; from * * purposefully, knowingly recklessly *. The State does have the burden in this issue. The burden persuasion on the as defendant, I’ve indicated. added.] [Emphasis 434 clearly those instructions seems have
The combination of prove conveyed jury to the that it was defendant’s burden negated presumed culpability his mental condition that that doing Although his act. the court reinstructed attended of the disprove jury as well that the defendant’s failure to burden, mental not relieve the of its we requisite state did State say degree interpretation any “cannot with confidence which 367, 383, jury adopted.” Maryland, v. 486 108 Mills U.S. [the] 1870, 384, 1860, (1988). 100 L.Ed.2d S.Ct.
B. argues Notwithstanding charge, in the the State the defect argument charge error is harmless. The has Division, Appellate of the support a recent decision State v. Carroll, (1990), 577 A N.J.Super. .2d 862 de certif. — - nied, (1991). tragically In that similar factual circumstance, stormy relationship couple love between stabbing disintegrated, culminating crushing in the murder thirteen-year-old daughter estranged the defendant’s wife. Appellate found the instruction in
The Division Carroll erroneously placed defective it the burden of to be because defendant, capacity a diminished on the proving existence of However, the contrary to error was harmless as Humanik. present “failed to evidence of the kind of the defendant had mental negate disease or which would state mental defect Carroll, supra, required to him of murder.” v. convict State 862. N.J.Super. 577 A .2d opinions this Appellate relied on Court’s Division (1989), Pitts, .2d and State 116 N.J. 562 A v. Breakiron, 2d 199. State v. supra, 108 N.J. A. Pitts, psychiatric testimony the Court concluded defendant, by the which characterized defen presented reaction”) (“rage dant’s behavior a loss of emotional control faculties, not the kind of cognitive than a loss of rather required diminished-capacity instruction evidence *13 the jury. submitted to 116 N.J. at .2d 562 A 1320. In State Breakiron, v. we ruled qualify that order to for the defense of capacity, diminished aat minimum the evidence must be capable shown to negating of a mental element of the crime charged impair cognition. or otherwise to 108 N.J. at A .2d 199. Based on opinions, these two the Carroll court distinguished between presenting a case evidence of mental a disease or that impairs cognitive defect required state to act knowingly purposely or a and case in which the evidence presented concerns a mental disease or defect produces “which an reaction rage impassioned emotive such as impulse or * * Carroll, supra, N.J.Super. at A.2d The requires 862. former case the submission diminished-capacity to jury defense whereas in latter case the defense need not be submitted.
Reviewing testimony, the Carroll court determined present defendant had failed to evidence that mental his impaired cognitive condition so prevent his faculties as to him acting purposely knowingly. from or stating While in concluso- ry terms that Carroll’s mental condition at the time prevented homicide him acting purposely knowingly, from or expert one medical asserted a combination of mental (atypical psychosis, organic syndrome, diseases brain and bor- disorder) personality derline or mixed the consumption (chronic abuse) alcohol substance caused Carroll to become enraged impulses. lose control his contin- court ued: never However, stated defendant suffered from an [the doctor] impairment being cognizant which his faculties him from of the fact that he prevented hitting stepdaughter stabbing his over the head with scale and her in the throat with a knife and that it was certain his actions would cause practically 2C:ll-3a(2). injury death See N.J.S.A. or serious child. There- bodily not fore, did mandate a instruction as [the doctor’s] testimony 577 A.2d defense of diminished [Id. capacity. 560-61, 862.] expert, neurologist,
Another defense concluded that Carroll recklessly, purposely knowingly. had acted He his based impression person that a who is conclusion on indifferent actions, the consequences of his or her one who does not care *14 dies, the victim lives or cannot be found to have acted whether neurologist purposely. knowingly believed that Car consumption of alcohol impairment intellectual and caused roll’s “acting “impulse fury, him control” that he in lose and was in a murder. A. 2d rage” when he committed the Id. testimony Appellate Division found that that 862. The was required the of a of evidence that submission diminish kind jury. ed-capacity defense to * * * possible consequence of the only Because “the court’s regarding the of to the defense diminished instruction improve defendant’s chances of capacity would have been acquittal,” the found securing Appellate an Division that the Carroll, prejudiced instruction had not erroneous beyond a reasonable Id. at error was harmless doubt. A. 2d 862. however, agree, are that the
We unable evidence analyzed way psychiatric this can be the same as the case testimony psychiatric In this case the the Carroll case. Kory defendant killed in the witness testified that fact “indicates even more so and under killing course of Melva doing or the fact he was not aware of what he was scores doing, certainly not in control of he because he felt what Kory he felt And opposite toward toward [than Melva].” prosecutor specifically by later asked about the strik when “I ing Kory, doing?” knew he was “But what Answer: [he] always But is a continuum. He could have think not. there aware, minimally As thin subconsciously been aware.” was, diagnosis contained a of a “brief reactive evidence it psychosis” that suffered at the time of the murder as defendant result stress. prosecutor questioned
In later whether cross-examination by his guilt, as shown conceal- defendant’s consciousness evidence, clearly had ment of the established that he conscious- ly killed: guilty get evidence, who knows would rid of the Q. Someone were they
wouldn’t they? A. Shouldn’t knows who that he has killed [one] two for whatever people, something reasons. like he did sounds Guilty has deliberate, he my point not. You don’t think he Q. killed? deliberately right. A. That’s placed Another defense closely witness defendant’s conduct rage pattern. into the He said he interpreted type “this rage reaction, control, homicide to be a emotionally out of homicide, murder —or excuse I’m sorry.” me. To which the prosecutor replied: “I take it one of those emotions of the *15 well, it, assailant could be hate couldn’t doctor?” That kind testimony of indeed qualify would not for the diminished-capaci- ty charge. might It mitigating capital-sentenc- abe factor in a ing proceeding, surely qualify but would not for diminished- charge. capacity
Nonetheless, testimony admissible of least of at one expert defendant’s purported pres- witnesses to establish the ence of a in mental disease the form of a stress-induced psychosis grew disorder, personality that out of the borderline which in According was described in some detail evidence. expert psychiatric witness, to defendant’s that disease or defect cognitive affected Moore’s faculties. qualitative
Given the difference between the evidence in this Carroll, agree case and that in and we are Pitts unable that charge any regarded can error as harmless. Defen- presented jury dant evidence from which could have conclud- ed State prove requisite that the had failed to state of mind beyond a reasonable doubt.
Ill Other Issues A.
Pretrial Issues Jury 1. Grand Selection challenges
Defendant
his
on
basis
conviction
that his
by grand
indictment and sentence at trial
returned
were
and
unconstitutionally
petit
selected. The
petit juries that were
jury
disposition.
grand
On the
by
mooted
our
jury issue is
our decision in
v.
issue,
asks us to revisit
defendant
(1987).
repeat what
Ramseur,
presentativeness showing make a prima that defendant has failed to we hold reform, facie jury grand selection violate either the procedures the Essex County petit 106 N.J Ramseur, [State supra, or fourteenth amendments. sixth A. 2d 227-28, 188.] agree County’s jury selec- parties seem to that “Essex procedures had not been altered since this Court’s decision tion not, however, They referring to the method in Ramseur.” are involving selecting grand-jury foreperson practice Rather, challenges particular panels. defendant the balance pool underrepresen- their qualified list and because the “source right constitutional composition ignores the defendant’s tative a fair cross-section of the grand petit drawn from *16 community.” stating significant if a caveat in Ramseur
We issued period significant continue “over a disparity statistical were to time,” lists and reliance on motor vehicle voter exclusive 227, suspect. Id. at 524 A .2d registration data would become attempt to demon defendant did not this case 188. Because Ramseur, concerning the caveat in we find that strate evidence in this case were not uncon grand-jury-selection procedures the stitutional.
2. Confession his oral and written confessions
Defendant contends that rights. in violation of his constitutional were obtained
439 respect Two critical issues have with arisen to the confes- (1) sions: the product illegal were confessions the tainted of an arrest?; (2) did questioning the continue after defendant requested had attorney? assistance anof both, Concerning the law is of course well settled. See York, 200, Dunaway 2248, 442 v. New 99 U.S. S.Ct. 60 L.Ed.2d (1979)(incriminating given 824 by police evidence to defendant during illegal an detention intervening inadmissible when no event illegal breaks the connection between defendant’s deten evidence); incriminating tion and the State v. John [Richard] son, (unlawful (1990) 118 573 A.2d 909 detention by police defendant followed refusal to allow defendant to statements); see counsel necessitated exclusion Edwards v. Arizona, (1981) 101 U.S. S.Ct. L.Ed.2d 378 (police prohibited initiating any interrogation from aof defen requested counsel); dant who has State v. McCloskey, N.J. (1982) (interrogation A. 2d of defendant fourteen request hours after inquiring his for counsel without whether spoken he had to counsel violated defendant’s sixth-amendment rights suppression requiring during of statements made interro gation). presents vastly
Each side different version of what oc- Moore, According curred at station house. he was immediately apartment Monday morning, arrested at the on handcuffed, literally period chained for a hours of seven before he confessed to the murder.
According police, they requested that Moore come to police investigation station assist in the the deaths arrested, family. Despite the fact that he had not been police warnings they defendant furnished with Miranda when questioning mid-morning Monday commenced him in following Only gradually begin the murder. did the evidence point proffered at inexorably defendant. Defendant alibi spent Sunday evening that he had with Lizzette Royal addition, Inn offered of an motel. defendant the name
independent witness who could confirm that he was at the Royal evening Inn motel on police of the crime. The left immediately pick up Lizzette and run down his alibi. leads, police
As the ran down each they began of the to find story. By mid-morning holes in the police had learned from Ennis White that she had apartment called the Moores’ at 9:30 p.m. phone, and that defendant had placing answered the him at the scene of the crime or near the time of death. police interrupted questioning also to attend the autopsies of the By they victims. mid-afternoon compiled had the written statements from Lizzette and Ennis White and had become convinced that there were serious flaws defendant’s story. He had lied night about his whereabouts on the crime. strong He had a relationship motive to end his with his wife.
According police, to the it was Moore who asked to see Lizzette. He was told that Captain’s she was in the Police p.m. office. At brought about 3:30 she was into the room. The graphically result was police “They described witness: jumped up hugged each you,’ other and he said T did it for and she crying, hollering, out; started passed and she I grabbed baby.” Within the hour defendant received re- [her] warnings gave newed Miranda the oral and written confes- sions to the murders that he suppress. seeks to suppression hearing
At the both he and Lizzette insisted that repeatedly requested he had attorney an gave before he his impulsive presence confession to her in police or the more formal confessions. Ennis White also testified that she lawyer overheard defendant “ask for a a few times.” Were true, police this could interrogate not have continued to him once he right had invoked his sixth-amendment to counsel. Critical to his credibility case was the of his and Lizzette’s and, so, testimony White, testimony even more of Ennis might impartial who be seen as an witness. The trial court *18 resolved those credibility against issues defendant and his witnesses. arrest,
On the issue illegal the trial court was satisfied, considering after facts, all of the that the State had beyond established a reasonable doubt that the defendant was morning arrested on the of June gone but rather had police station as a natural event in the routine investigation of the deaths in the family. The court noted that he had had quite a few hours to think about prepare his defense in the case. He had taken the time bloody to hide the clothes and hammer. The court concluded that obviously knew that “[h]e police speak would want to to him and obviously he came to police station with the frame of mind that he could talk his way out problems.” of his The court good noted that he had a high-level job. education and a He previous experience had with the law and an understanding admitted of Miranda warn ings rights. gave constitutional He information that was helpful police to the and indeed intended to lead them to his alibi information, witnesses. As a result of that question ing stopped until the various leads had been run down. question
On the of whether requested defendant had counsel, assistance of the court was also convinced that that had not been the case. “He claims that on six or so occasions lawyer. he asked for a I don’t testimony.” believe that support findings, of its pointed factual the court to several testimony inconsistencies suppression hearing. at the example, request For lawyer for a would have been absolute- ly purpose there, was, inconsistent with in being his which as he admitted, himself appear cooperative try and to to outsmart police any way admitting any without in guilty knowledge or responsibility for the crime. Defendant also admitted that he had heard police Ennis White’s voice in another room at headquarters, leading to the conclusion that he was not isolated they from others since were but ten away. or fifteen feet The court testimony discounted Lizzette’s on defendant’s request for counsel because her statement to that effect was product repeated prodding by attorneys: defendant’s “they kept asking me if lawyer.” he asked for a The clear by inference drawn the court asking was that the idea of for a lawyer placed had been in her mind asking those questions. She would have had to have been rather dull not to *19 might have concluded this helpful to defendant. Ennis testimony might White’s have been favorably viewed more to defendant if she had not lived with a man who had had numerous investigating confrontations with the Orange East Department Police friendly and not been with defendant at work. short, the court concluded: any question “Lest there be ability lie,
about the of Mr. Moore to he repeatedly has admitted on the stand police that he lied to the officers in order to protect himself and that those were deliberate lies.” It took little further to the court lying convince that Moore was when right all, he said that he had invoked the to counsel. After “the thing last the defendant had in mind indicating was that he lawyer wanted a since that attempt would interfere with his situation, talk way his out of the so I do not believe the testimony regard. of Ennis inWhite I think she was simply trying help this defendant.” satisfied,
The trial court was considering after all facts, that the beyond State had established a reasonable doubt that the defendant had not been arrested on morning of the. 30; June station; that he had come voluntarily police to the stayed voluntarily; leave; that he there that he never asked to that he wanted to police continuing remain there as the were investigation; their that he wanted to “play continue to out his long cards as having as he could” to avoid charges these leveled against him. The court was further satisfied that all Miranda warnings him; given were that he was asked if he under- rights, counsel; stood his including right to have that he actually was not under arrest when he made the admission to Lizzette. The court therefore concluded that the evidence confession, seized as a result of the the hammer and the clothing, proceedings in the against admissible him. We findings believe that those factual are well founded in the record, and rulings. we sustain those 3. Dire Voir
Defendant contends that
improperly
the trial court
limited
dire,
scope
questioning during
voir
and that “the voir
woefully inadequate.”
dire as a whole was
Although that
argument
challenge
makes a broad-based
to the trial court’s
dire,
points specifically
voir
defendant
to three issues that he
improperly
questioning:
believes were
handled in the voir dire
(1)
impair
whether the status of the
substantially
victims would
duties;
juror’s ability
perform
(2)
jurors
his or her
whether
had
psychiatric
biased attitudes toward mental-health and
de
fenses;
(3)
jurors
and whether
understood that a defendant is
presumption
proven guilty.
afforded the
of innocence until
Defendant concludes that the trial court’s
on these
limitations
questions during
process
and other relevant
the voir dire
deprived him
right
of his “fundamental
to a fair trial
an
*20
impartial jury.” The State counters that the voir
dire
bias,”
“thorough
detecting juror
in
and that the trial court’s
“rulings regarding
questioning
fully
other areas of
were
in
(1969).”
Manley,
accord with
v.
A.2d
[255
193]
sought
question prospec-
In Manley the defense counsel
to
jurors
ability
about their
to limit their consideration of his
tive
prior
appropriate purpose.
conviction to its
The trial court
questioning
representation
refused to allow such
without some
by
during
the
defense counsel that defendant would take
stand
appeal,
upheld
trial. On
this Court
the trial court’s decision to
panel.
deny
requested question
defendant’s
to the voir dire
proce-
Manley
The
Court took that occasion to institute revised
so,
jury
doing
dures for
selection.
it stated that while
[during
by
per-
“supplementary questioning
voir dire
counsel
]
* * *
sonally
scope
control
its
entirely,
is not foreclosed
over
to
experienced judgment
and content is left
the
and discretion
* *
282,
the
judge
of
trial
Id. at
445 conference, although trial the court informed counsel that it questioning by party, permit any would allow each it would not juror questioning speculate particular that forced on how fact would influence his or her deliberations in the case. Rath- er, permit question the court would of whether such facts substantially ability “would their interfere with to follow the law.” objected repeatedly
Defense counsel to that limitation throughout proceedings. Defense counsel wanted to ask open-ended questions jurors. objection more of individual His immediately prospective juror after the voir dire of the first adequately problem more than summarized his with the voir dire and the court’s restriction: we all know is that “[What] they respond [only] question if will be able to robot-like to a they argued will follow the law.” Defense counsel allowing jurors express feelings their attitudes and about case, particularly troubling facts of the the court’s limita- questioning during receiving tion of the voir dire “avoid[ed] juror.” information whatsoever about this problems capital of the that we have in cases is that the One constitutionally-limited disqualifica standard for Adams-Witt (would personal jurors capital tion of causes their views efficiency penalty death morality, utility, “sub ability to follow stantially interfere” with their nevertheless statute?) gets apply death-penalty confused State’s predispositions or general inquiry juror the more into with general jury-selection pro preferences that should mark the Texas, 65 L.Ed.2d cess. Adams v. US. S.Ct. (1980) Witt, Wainwright v. 105S.Ct. U.S. case, (1985). non-capital example, For in a we 83 L.Ed.2d jurors invariably permit questioning of about almost would they give inclined to more credence whether would be However, do not than to others. we law-enforcement witnesses are the fact that some witnesses law-en jurors ask the whether substantially interfere their with forcement officers “would get speaking way is the best ability to follow the law.” Plain *22 such predispositions. meaning at of Norman-French (“to truth”) expression speak conveys dire voir this idea. sense, discovery In a voir as a dire acts tool. It is like a parties trying in which the to conversation are reveal the source any manipulation delay of such attitudes or without of the trial. However, discovery effective, for procedure order that to be potential jurors comprehension need to some have basic about sense, legal jurors their duties as will In what be. voir can a teaching necessary, dire act as tool. When courts can way educating potential jurors use voir dire as to the “legal requirements” responsibilities jurors. of their Leisure, (Mo.1988). 749 S.W.2d
Although voir dire issues have become moot because disposition, the Breakiron/Humanik we believe overall sufficiently probing conduct the voir dire in this case was to by impartial assure that defendant a fair an jury. received trial guidance offer these comments capital We for in future trials.
a. argument victims, Defendant’s first involves the status of the namely, the pregnant Kory fact Melva Moore was years Moore was less than two old at time of their deaths. the pretrial At following conference defense counsel offered the question for dire voir consideration: pregnant it If from evidence that Melva Moore six appeared months eighteen Moore was when he
Kory months old would that circumstance died, interfere with duties? substantially ability your your perform permit question The trial court this would because it would asking jurors speculate they might “on what do or how might contingencies.” their verdict be influenced certain view, questioning its scope would contravene the intended contemplated by of voir dire as this Court An Manley. early colloquy between court and highlights defense counsel scope their questioning: differences over the things. Your I’d like Honor, time, First, this to note several [COUNSEL]: continuing objection precluding asking our us from what Honor’s we your pertaining significant to this to be questions particular consider extraordinarily reargue anything going about that. case. I’m not * * * * and burden of insanity proof] [discussion [remaining] deals with the child Honor, The most question, your important asking pregnant. whether and the fact that Melva Moore was Simply victim feelings which are killed, the fact that a child was we have about they to ask is not sufficient. permitted *23 be of the to ask them what the effect on them would THE COURT: You want being killed. child child was would killed, first, Whether feel that a they [COUNSEL]: they be more to convict merely be more to convict —whether they likely likely would rendered, if a conviction is and more whether reason; for that importantly, death In other would be more penalty. whether likely impose they aggravating factor. would create their own whether words, they said, questioning, part, in it this line of The court resisted factor, aggravating killing a child could in itself be an because more, think, perceived it to be the of what but we because Manley. purpose of approach That overreads the strictures of Manley, which juror judicial inquiry into was not to eliminate limit more of the case but rather “to biases the context scope of the voir dire.” 54 N.J. at stringently the conduct and Manley Court, 255 A. 2d 193. For limitation of this voir dire meant
eliminating favorable to instruct indoctrinate, the efforts to persuade, legal to lecture on involved, or not be that may may principles explanation ending in one to the the lecture other, and the facts and the relation of the law It means also a hypothetical a for form’s sake. prohibition question jurors pledge to a framed as to commit or to point intended and so question argument of counsel evidence, have heard view or a result before they any A.2d 280-81, court. 193.] instructions of the [54 a
Yet,
early resistance
spite
the trial court’s
whole, the voir dire
dire,
that,
voir
as a
open
we believe
more
any prospec
attempt
to weed out
sufficiently probing
its
was
the facts
through their answers that
indicated
jurors
tive
who
ability to decide defendant’s
might
impair their
of this case
correct sentence.
or decide the
guilt or innocence
dire, like others that we
voir
noting
begin by
this
We
jurors’
as the
seen,
rhythm
a
of its own
gradually took on
have
fact,
and counsel.
apparent
to court
attitudes became more
they
jurors if
had
invariably asked
prosecutor
almost
attitudes about the status of the victims that would “interfere
your ability
impartial.”
with
to be fair and
Sometimes defense
permitted
counsel was
to ask without objection: “Would the
fact that one of the victims
you
here was a child influence
so
likely
that it
you
would be more
impose
would
the death
penalty?” At
question,
other times the court resisted the
ruling that counsel
trying
“jurors
to find
sympa-
who are
cause,”
your
stating
thetic to
person
that “the fact that a
likely
would be more
to convict if
crippled person,
totally
it’s a
person,
child,
innocent
that’s not bias. That’s not bias at all.”
grounds
cause,
If that is not
surely
to excuse for
it
shows a
juror who could be
peremptorily.
excused
Thomp
See State v.
son,
274, 280,
142 N.J.Super.
(App.Div.1976)
that Manley permit questions would not jurors’ about attitudes type Thus, related to the of case before it. when counsel asked juror a if the might circumstances were such that “it be more you Moore,” difficult for to be fair to Mr. the court sustained objection question, ruling: to the asking “You are about the particular in effect a case.” Of course he was. But that is the purpose of predisposi- voir dire: if there are or biases see “particular in tions case” that is before the court. delicate, “important, and process is death-qualification The searching” inquiry into “thorough and requires complex,” and Williams, 113 v. N.J. opinions and biases.” State “jurors’ (Williams II). enough just (1988) It is not 413, 550 A .2d1172 of the crimes the nature jurors capital in a case whether to ask deliberating a death on ability to be fair affect their would correct so far years. question The a term of sentence versus many say Will really only invites one answer. goes, it but it to the voir dire Williams they unfair? Similar that will be gave responses to the case rote II, many jurors of the this affect their facts in this case would of whether the question It is also clear from the defendant. ability to be fair to prejudices and jurors did have prospective certain record that case and the status to the facts of this pertaining biases victims. opening state place for
Obviously, jury selection is not
capital-trial
single-jury
arguments. Under our
closing
ments or
however,
duty as both
must,
double
serve
system, jury selection
counsel to
a time to enable
“death-qualify” jurors and
time to
selecting a
prerogative of
the valuable
exercise
constitutional
simply
inquiry are
purposes of the
jury. The
impartial
fair
Zola, 112
overlap.
same, although they tend to
not the
overlap
(1988),
384, 397,
demonstrates
to draw them personal putting college insist on all questions forth. This trial court did not and so jurors I want it been, clear, has my practice but said: practice “[M]y go season, instance and say ‘open turn to counsel in each and every has been to to do.” I don’t know what else what else to do. at it.’ Now I don’t know counsel from what on which it had to stop referred to one occasion The court questioning, it was tolerant but on the whole extensive line of it considered an were questioning. it detected that attorneys it said that when Indeed, jurors, questioning it getting a few “I to pick up line of with try onto a sensitive * ** I mean, know that what look I also and ask it so that it doesn’t partisan. get the line of I on irritated at try pick up don’t want them to you. you throwing idea in this questioning you even to the asked point you’ve * * give short, balance and even-handedness.” *. To it a have asked try
451 considering this trial court to of quite counsel and indeed open requests permitting them to examine witnesses themselves. Therefore, in with accordance our decisions in Williams II, Zola, Long, and open-ended voir dire should allow more questioning on the issue status victims as it any prejudice predisposition affecting relates to juror’s ability adjudge fairly guilt phase ability to in the or the mitigating in any phase. consider evidence penalty order justified, be the inquiry necessarily need not lead to the excusal any for juror cause. The juror standard for excusal of a for scope cause does not inquiry exhaust the of reasonable might lead of a peremptory challenge. exercise
b.
argues
Defendant
improperly
that the trial court
him
denied
opportunity
prospective jurors
to ask
about their attitudes
insanity
toward
and mental-health
defenses.
court based
Manley,
259,
its decision on
supra,
State v.
54 N.J.
A. 2d
255
193,
38,
Kelly,
N.J.Super.
and State v.
285 A.2d
(App.Div.),
denied,
350,
(1972).
60 N.J.
In Kelly, charged first-degree defendant was with murder. dire, During sought inquire voir counsel if the defense prospective jurors feelings had about the defense of insani- ty they accept if proven. whether would it The trial court questioning, Appellate did not allow that line of Divi- * * * affirmed, concluding objectives sion “that Manley inquiries would not well a rule mandates served which jurors prospective concerning their as to attitudes substantive defenses, insanity, particularly or as to other rules of law which implicated in the trial or in ultimate may become the court’s charge.” Kelly, supra, N.J.Super. 285 A .2d 571. *27 jury- until the
Intending Kelly, to follow the court waited guilt penalty phases charge portions of both the to address against possible juror insanity the issue of bias the defense and guilt-phase charge During other mental-health defenses. the jury, prejudice the the court stated that the law “entertains no capacity insanity,” diminished or and at against the defenses of penalty phase jurors the instructed the to consider the evidence The surrounding open mental health with a “fresh and mind.” jurors contends that that was sufficient to insure that State defense, against mental-health would not be biased defendant’s jurors apply to the fact that the had sworn to follow and due argues the of the State in their deliberations. Defendant laws appeal on this that those instructions were insufficient because they process permit too late in the detection of occurred potential juror against insanity bias the or other mental-health defenses, adequately and that the instructions did not reveal any potential by jurors. held the biases Stack, support argument, People
In
defendant cites
v.
301,
676,
339,
denied,
112
493
479
Ill. 2d
97 Ill.Dec.
N.E.2d
cert.
870,
236,
(1986), in which the
107 S.Ct.
A defendant’s
to an
where
impartial
protected
jurors
allowing
whether
will abide
the law
that contro
sole
into
inquiry
all-embracing
which the
versial defense is the far broader and
State
question
jurors
contends was
in this
whether
would follow
case,
propounded
namely,
on the law.
at
453
313,
ty
issue is involved in the case.
defense when that
Id. at
(citing
at
c. argues an abuse of the trial also that it was Defendant question not to allow defense counsel court’s discretion jurors prospective understanding about their of burden proof of presumption and the Again, of innocence. the court believed that those issues scope contravened the of intended voir as dire in contemplated Manley, preferred and instead issued its ques- juror] accept tion: “Could charged as by law [the court?” objection When defense counsel his renewed to the during court’s limitation the voir dire and claimed that the New Hampshire required courts such questioning, the court respond- ed: disagree thoroughly holding, New court and I held, with their [The] Hampshire jurors
that because
concerned that some
not
they’re
would
know the
]
principlef
law that one is
innocent and the burden of
is on
[of]
presumed
State,
proof
because
had read some
that had been done
some
they
surveys
company,
jurors
had
therefore
to ask the
whether
could
those
you
they
accept
particular
law.
of
principles
right.
All
That
is
inconsistent with
[v.] Manley,
and I’m
utterly
going
long
jurors
it.
to do
And I think it’s
as the
utterly unnecessary,
nothing
accepting
indicate
there
know of
this
they
about
the law of
State.
Although
discouraging
Manley may
requirement
read as
a
of
questioning, preferring
place
such
instead to
decision
allowing
questions
prohibiting
such
within
discretion
court,
expressed
capital
the trial
we have
our
belief
cases
require
“thorough
searching
inquiry”
regard
and
to voir
II,
dire.
supra,
Williams
N.J. at
d. As a final regard dire, matter with to the voir defen dant prospective contends that jurors two improperly were excluded for cause before it was ascertained a “clear show ing” that their substantially impair views would ability their during penalty-phase deliberate portion of the trial. The prospective juror stated, first question “I don’t think that I’m * * * say right able someone has to have a death *31 penalty,” before juror, she was excused. The other while answers, vacillating in express somewhat her did that it was difficult for her to imposing penalty. consider the death Defen- dant maintains neither prospective jurors that of those indi- showing” predisposition cated a “clear against the death penalty, and thus should have been excluded. Jersey adopted Texas,
We note that
has
New
the Adams v.
38,
2521,
(1980),
448
100
US.
S.Ct.
225, 293, (1988), denied, 548 A .2d939 cert. 488 U.S. (1989). record, reviewing
S.Ct.
B. Trial Issues blood-spatter-analysis expert 1. sufficiently qualified? Was the argues Jersey Defendant that admission New Police De- testimony spattering tective Thomas McCormick’s on blood and, consequently, right violated Evidence Rule defendant’s McCormick, process. qualified to due He contends that who at expert investigation, including trial as an in crime-scene blood identification, spattering fingerprint quali- should not have blood-spatter analyst fied as a because he was no more than a testimony significant prove technician the field. His was killing Kory knowing purposeful, that the was rather than object accidental claimed. Defense counsel did not qualification McCormick’s argues trial. Defendant now plain requiring it was error reversal under Rule 2:10-2. Using photographs scene, explained McCormick at trial spatter patterns showed that stains of Melva’s blood found Kory’s on overalls did not come directly from Melva but were person, defendant, transferred another like object, or an like the hammer. He testified that the location of the stains indi- cated that the coming blood was angle, down at an trailing off ground, toward signifying thus Kory lying was on the floor Moreover, when the blood reached him. based on blood spatters on hamper the wall behind the that was between the bodies, two McCormick Kory testified that probably struck at least twice position. while his final He testified that intersecting spatters appeared to come from three different *32 Although directions. might some Melva, blood have come from directly hammer, either or via the he said that three distinct spatters of blood Kory identified with were consistent with the upward one and one downward necessary motion to strike the second Kory lay blow while on the floor.
In voir dire McCormicktestified that he had been a member of Jersey the New eight State Police for years and a crime- investigator scene years. for two His duties photogra- included phy, collection, evidence fingerprinting, autopsy attend- ance. His training six-week course had included one-day blood-spatter seminar in analysis, supplemented which had been day another of training. in-service McCormick had investi- gated more than scenes, two hundred crime thirty at least of homicides, them previously and had expert testified as an fingerprinting and analysis, crime-scene but had never before testified blood-spatter-analysis as a expert. The trial court qualified found him testify expert as an in crime-scene investigation, including fingerprint and blood-spatter analysis.
A qualifies witness expert as an under if Evidence Rule 19 there is required “experience, evidence of the training or edu- recently explained cation.” We expert that an must “be suit-
459
ably qualified
possessed
specialized
of sufficient
knowledge
express
able
expert
opinion]
explain
and to
[an
opinion.”
basis of
Odom,
65,
71,
State v.
116 N.J.
560
(1989).
A. 2d 1198
expert
admission of
testimony, and its
competence,
discretionary judgments
are
of the trial court.
Zola, supra,
State v.
We find no error here. The trial court conducted voir on qualifications. Philbrick, dire McCormick’s State v. Cf. (Me.1981)(admission A.2d 860-61 “expert” testimony on spattering blood was error when trial court failed to consider *33 reliability and rule on testimony qualifications of such and of witness, prior testimony and autopsy pathologist of called into question spatters sequence use of to show and directions of gunshots). explained conclusions, He how he had reached his reasoning counterintuitive; and his likely was not it would aid jury. Hall, rather than bewilder the 297 See State N.W.2d 80, (Iowa 1980) 86 (blood-spatter analysis has sufficient scien reliability tific jury: largely to aid observations are “[S]uch
460 sense, fact, lie an on and in close to ken of based common 1384, denied, 927, layman.”), 450 101 average cert. US. S.Ct. bullets, tracks, (1981). comparisons 359 Like of tire 67 L.Ed.2d handwriting, blood-spatter analysis submits all basic data or judgment evaluating trier of for exercise of its to the fact Zola, supra, at 548 112 N.J. evidence. See also State v. expert’s testimony why (serology suggesting reasons A.2d counterintuitive); missing sample components from blood Handler, I, 121 Knowledge,” of Part “The Judicial Pursuit (1988) (noting concerns that counterintuitive N.J.L.J. expert testimony may jury). highlighted confuse The defense specific training experience on the witness’s lack of and both summation, allowing and in to as cross-examination exper testimony. Although value his McCormick’s sess the minimal, his may have in context the admission of tise been testimony plain did error. not constitute duty to 2. Did the trial court breach a inform defendant of during phase? right testify guilt to constitutional argues the trial violated his con Defendant court right testify by failing right to him of stitutional to inform failing knowing voluntary his We to obtain waiver. right recently defen affirmed constitutional criminal testify Savage, on his own State v. 120 N.J. dant behalf. time, 594, 628, (1990). however, At the we A. 2d 455 same counsel, represented by “when the trial held that a defendant right testify required is not to inform defendant of his court consequences Id. at explain choice.” Rather, obligation it inform A. 2d 455. is counsel’s defendant testify, right right not to and of the of that as well disadvantages strategic advantages or of each. Id. inquire recommended that the trial court A.2d 455. We have counsel has so informed defendant. Ibid. whether Here, as in we find that thé court breached no Savage, trial duty right duty, because it had no to inform defendant his *34 remand, testify. On court Savage the should follow the recom- mendation. prosecutorial Did unjust
3. misconduct lead to an verdict? pattern Defendant prosecutorial claims that misconduct the of depriving had cumulative effect him a fair trial. He guilt phase, that in during asserts the both cross-examination summation, prosecutor and the improperly expert attacked testimony Ramseur, of Dr. supra, Gould. See State v. (prosecutor may challenge expert’s A.2d 188 opinion, may pit against but his credibility expert’s). own trial, defense objection At counsel made no cross-exami- Gould, of Dr. prosecu- nation but heated between interplay prompted tor witness the court to admonish both. The called court for a five-minute recess. prosecu- It cautioned the basis,” by asking questions tor “continue on a rational clear statements, making rather than and cautioned Dr. Gould to questions volunteering answer without additional information. summation, below, unchallenged In also prosecutor argued sight Dr. objectivity” that Gould had “lost all because his evidence, diagnosis supported by was not that he “wanted jury description person- to mislead” the with his of a borderline ality, and that the defense that the defense of “realiz[ed] insanity just totally false and without merit whatsoever.” addition, prosecutor that defendant claims committed when he error twice asked defendant on cross-examination if he Although claimed other witnesses had lied. the court eventually reprimanded prosecutor sponte, sua defendant disregard contends the failure instruct the those questions and answers left the defendant unprotected from the consequent prejudice. prosecutor penalty phase
Defendant asserts that encouraged imposition by focusing a death sentence on matters, namely, noting general protect extraneous need to society, implying justice mandated a death sentence for a murder, characterizing expert double witness Diana Aviv *35 duped by the bleeding heart was indeed “professional who
aas
those
argues that
the emotional force of
He
defendant.”
jurors
the
their
potential
the
to divert
from
had
(cid:127)comments
phase,
aggravat
consideration of
penalty
proper role in the
454,
Rose, 112
v.
N.J.
mitigating factors. See State
ing and
(1988);
Ramseur, supra, 106 N.J.
521,
v.
Because we
any alleged
reversi
misconduct constituted
determine whether
446,
II, supra,
4. pregnancy? Moore’s preg- six-month argues the fact of Melva’s
Defendant that relevant, irrelevant, and, remotely unduly preju- if nancy was compounded by dicial, of its admission was the error the trial repeated references it prosecutor’s give limiting court’s failure to instruction its on use. Defen- dant guilt moved before trial exclude that fact from both the phase phase. penalty and the The court denied the motion. agreed
The arguments court with State’s six- month pregnancy mind, was relevant to defendant’s state of revealing in killing motive or intent her on based awareness vulnerability. her In addition it concluded that evidence pregnancy was relevant the asserted defense of diminished capacity possible self-defense, imper as well as the defenses (a then-plausible fect theory, Bowens, self-defense see State v. (1987)), mitigat A. 2d self-defense as a ing also accepted argument factor. court State’s *36 willingness to defendant’s cause the death of his unborn child was to his of striking Kory, making relevant state mind in an killing likely. intentional more It declined to rule on whether pregnancy the the increased likelihood that Melva had refused out, kill, to providing move thus to motive but noted that that argument to probably justify alone would be insufficient admis sion of the evidence.
Although rejected killing it the proposition pregnant that a woman in act depravity, purposeful was itself an of or a that killing homicide, of a viable fetus constituted noted the-court many that tend it would to believe that was murder or to find it morally repulsive. an 4 analysis, Under Evidence Rule it pregnancy highly inflammatory. found that evidence the was charged murdering But here also with defendant was the infant Kory. pregnancy The court found evidence of Melva’s less shocking aspect already because the of child murder was present agreed case. permit “appropriate It to reference pregnant to the fact that the wife was six months at the time of death,” long suggest her as not that was as the State did there a third victim. statement,
During guilt-phase opening prosecutor his wife,” repeatedly “pregnant referred Melva as defendant’s to point significance pregnancy but did out not on At witnesses testified that Melva was issue. trial several arguments State made no pregnant, but in summation the pregnancy. on the based discharge penalty phase to
Before the defense counsel moved guilt-phase jury’s empanel jury and to a due new knowledge pregnancy. such as the prejudicial facts refused, finding pregnancy that the relevant circum- was court penalty at the evidence of defendant’s state mind stantial well, willingness give cautionary phase indicated and penalty phase prosecutor made no instruction. At the statement, pregnancy opening in his but mention again repeatedly summation referred to Melva as defendant’s objection response to defendant’s that the “pregnant wife.” stage, prosecutor irrelevant was pregnancy was permitted argue probative that it of defendant’s intent was c(4)(c), anguish, factor as Melva would know to cause mental baby of life.” The that her would “never breathe breath jurors pregnancy later its termi- court instructed factors, aggravating they not nation are “must pregnancy either or the effect of the defendant’s acts consider aggravating upon the fetus as an factor.” agree carefully We with the trial court’s considered potentially judgment that evidence admissible. It was this intent, was at issue in relevant defendant’s motive which trial, find phases of the and we no error the court’s both *37 not it exercise of its discretion to exclude under Evidence Rule weighing probative prejudicial Pregnancy 4 and value. after its as subject balancing is to the same tests other evidence. Com 44, Manier, 54, 811, pare 184 518 P.2d 817 People v. Colo. “integral (1974) part death of fetus of (pregnancy of victim and Thomas, murder”); surrounding State v. the circumstances (defendant 413, (La.App.1985) 2d 420 claimed self-de 470 So. fense; inability to pregnancy relevant “her size victim’s herself”) defend v. either to attack defendant to Givens 533, (where 573, 576, (1982) State, Nev. 655 535 victim 98 P.2d
465
beaten,
severely
pregnancy “directly
evidence of advanced
* *
*
**
*
physical
bore on
whether the
force used
could have
death”)
been
to
Watson,
calculated
cause
with State v.
99
694, 698,
835,
(1978) (reference
Idaho
587 P.2d
839
rape
trial,
pregnancy
victim’s
time
at
of
not
rape,
as result of
irrelevant”); People
Pendleton,
“far-fetched and
v.
24 Ill.
385, 392,
App.3d
433,
(1974)(victim’s
321
pregnancy
N.E.2d
438
explain
escape attempt
offered to
futile
and identification of
victim;
in company
defendant
of
both reasons “untenable”
identification);
where
stipulated
State,
defendant
v.
Jacobs
155, 158,
1034,
(1975) (evidence
91 Nev.
532 P.2d
pregnancy
by shotgun
of woman killed
during grocery
blast
robbery
harmless)
store
but
irrelevant
admission
and Burrows
533,
State,
(evidence
640 P.2d
538 (Okla.Crim.App.1982)
pregnancy
during guilt
trial),
irrelevant
phase
capital
cert.
denied,
(1983).
U.S.
S.Ct.
Here, despite pretrial arguments, guilt in the phase the State connecting did present evidence the pregnancy to defen prosecutor dant’s actions. repeated Nevertheless the made pregnancy, request, references to the and defendant did not nor give did sponte, limiting the court sua instruction. The State similarly failed pregnancy to establish the relevance of the there, penalty phase, although defendant’s state of mind at the noted, expressly court use pregnancy limited of the as an aggravating repeated per liberty factor se. The refer wife,” “pregnant corresponding ences to defendant’s without establishment of relevance to defendant’s of mind state with defense, respect either or to victim tended effect to probative remand, outweigh prejudice. with value undue On preg both court and counsel shall that the insure evidence nancy properly probative purposes. limited to its We caution against unnecessarily dwelling pregnancy on at retrial. Cf. Harvey, supra, (emphasis State v. 581 2d 483 A. on improper); Pennington, victim’s recent widowhood State v. (emphasis supra, 119 N.J. at 575A.2d on character and *38 clearly impact family of death on her background of and victim inappropriate). admitting photographs of the court err in
5. Did the trial victims? thirty-nine by8" 10" color introduced into evidence
The State
twenty-nine from the crime scene and ten from
photographs,
first,
challenges
Defendant
the use of color
autopsies.
victims; second,
guilt phase
in the
admission
prints of
head;
third,
admission of
photographs of Melva’s
two
phase.
photographs
penalty
in the
dispute
of color
First,
does not
the use
defendant
victim,
argues that
pictures
the crime scene that show no
but
victims,
pictures of the
at the scene and at the
and white
black
probative
much
value with re
autopsies,
have had as
would
grue
prejudice.
photographs, even of
potential
duced
for
Color
crime,
color
aspects
objectionable
are not
for their
some
Smith,
433, 448-49, 142 A. 2d
[Edgar]
v.
27 N.J.
alone. State
(1958). Moreover,
evidentiary
they may have added
value.
Annotation, “Admissibility in
of Colored Photo
Evidence
(1957). But,
any photo
like
graphs,”
53 A.L.R.2d
logical
they may
excluded when their
relevance
graphs,
“inherently prejudicial qualities.”
by their
State
overwhelmed
890;
Smith,
142 A. 2d
see also
supra, 27 N.J.
[Edgar]
v.
457, 464-65,
(App.
Polk,
Second, defendant specifically objects to the admission guilt phase of two photographs, S-7 and S-38. Both show Melva’s head wounds. Defendant specifically object did not to trial, admission of response S-7 at but in to defendant’s general objection to the photographs color the trial court com- mented: S-7 is the most offensive. perhaps This is a shot of the head of the mother. degree savagery However, this case, of the attack, blows multiple are all evidential with to and the —and respect purpose, therefore, the same is true with which shows respect S-8, wounds to the head. multiple photographs These are that demonstrate the scene as it was when the defendant was and when he there, left, and are relevant clearly all might admissible and stress be caused would not be additional] justify keeping photographs, sufficient a Rule 4 out the even black and white
photograph substitutes. Defendant describes depiction S-7 as a “horrible of blood and matter,” brain unnecessary considering twenty-eight the other admitted, photographs crime-scene including very similar S-8, and not relevant to defendant’s state of mind. autopsy objected to the admission of both
At trial defendant duplicative. excluding photographs S-39 as After S-38 and hand), the grasped matter in Melva’s court (showing brain S-41 S-38, I in evidence as show- saying: “S-38 will allow admitted wound, looking man and what the ing the nature initially relating totality of the attack.” After as “unduly gruesome,” agreed the court to the excluding as S-39 only wounds cropped version show two admission of repe- as photograph, but S-37 any other excluded shown awful,” fo- “particularly Defendant describes S-38 titious. *40 Melva Moore’s head.” cusing destroyed portion on “the of Although dispute photo- not relevance of defendant did the trial, at he that S-38 is relevant because graphs now asserts killing a hammer. conceded Melva with he responds that both S-7 and S-38 are relevant The State “the of the attack and probative intent kill and of nature to Although photographs of mind.” tend defendant’s state unnecessary cause of may cause of death be where establish they may admitted when relevant undisputed, is be death Sanchez, supra, 224 of “the viciousness the attack.” State v. 250, sought to N.J.Super. A.2d 201. Here the State at 540 position of the nature defendant’s that he was unaware rebut striking in court bal quality of his acts Melva. trial photographs of probative prejudicial the and value all anced several, offered, findings on specific made S-7 excluded and admitting did not abuse its S-38. In them court and discretion. photographs of
Finally, that none defendant claims penalty phase none was relevant at the because was admissible photo any aggravating factor. The trial court admitted discussion, they are graphs but the State asserts without c(4)(c) c(4)(g) concerning both victims. relevant to factors photographs of in the argues Defendant that admission guilt phase, penalty phase, previous admission after their conversely, the repetitious prejudicial; more therefore
469 State sees the second admission given as harmless earlier exposure. Bey, (1988) II), 112 State v. N.J. 548 A .2d887 {Bey general
we noted that the logically photo rule that relevant graphs are admissible at the applies discretion the trial court phase as penalty capital well to the of a case. We stated that c(4)(c) in light interpretation of the of the factor announced Ramseur, supra, State v. 106 N.J. at .2dA may “[pjhotographs on aggravated admissible torture and battery proof pain as intent to severe depravity inflict or on II, to show after Bey supra, mutilation death.” State v. recently, N.J. at A .2d 887. More we cautioned that “the need to relevance [photographs] balance ostensible against jury prejudice the likelihood of especially critical penalty phase capital Pitts, of a supra, case.” State v. 638-39, at A .2d 1320. application c(4)(g)
We discuss elsewhere
See
factor.
469-474,
at
6. court Did the trial allow of c(4)(g) ing factor to both victims? application aggravat challenges
Defendant the dual of ing 2C:ll-3c(4)(g) (killing during factor committed N.J.S.A. Kory’s killing) commission of another to both Melva’s and murders, asserting reciprocal unconstitutionally that such use actually only aggravating of one doubles the effect what is killing aggravat that factor. He claims the use of each as an ing other inflates the of the artificially factor in the effect addition, underlying suggests In defendant that the facts. Melva, killing aggravating inapplicable is to the of be factor killing already progress cause her was when he attacked 470 committed “while the defendant not have been
Kory, and could of, commit, attempt an or engaged in the commission commit[,] attempting to murder committing or flight after * * 2C:ll-3c(4)(g). N.J.S.A. Court, addressing question, con Supreme that Georgia The aggravating ‘mutually supporting that “doctrine of cluded imposition of two death sentences precludes circumstances’ statutory aggravating circumstance that the sole where State, v. Putman murder.” committed a double defendant has denied, 145, (1983), cert. 614, 466 605, 308 153 251 Ga. S.E.2d L.Ed.2d 546 954, 2161, (1984). has California US. S.Ct. 80 statutory application of one of its rejected the double also circumstances, murder, multiple of a that special commission Harris, People 36, 67, v. 36 Cal.3d hearing. a triggers capital denied, 801, Cal.Rptr. 782, cert. U.S. 679 P.2d (1984). The California S.Ct. 83 L.Ed.2d explained: Supreme Court allege at murder this circumstance there must be more than one Since special alleging for inflates circumstances a double murder improperly two all, special the death a result also risk that will arbitrarily impose penalty, sentencing that inconsistent the constitutional requirement capital with. objective guide jury’s of the and focus the consideration particular-
procedure and the individual offender. [Ibid.] ized circumstances offense provide particular stan Jersey similarly New we seek to guide jury in its consideration of the individual crime dards to capricious imposition arbitrary and the risk of in order avoid unnecessary prejudicial inflation penalty. of the death by double-counting of factor aggravating circumstances Rose, supra, 112 goal. pursuit hinders that 527, 548 1058. A.2d case, argues double-counting no oc- In this the State killing of curred, in the Melva engaged defendant was engaged and he was also baby, he killed the when killing baby when he killed Melva. logically impossible. You counters that this is
The defendant kill killing A B or B in course kill in the course of either *42 abstract, killing A. correct in That sounds but we have not approach capital-punishment taken an to the law. abstract improbable, Such a construction of the factor would assume the pause killing, that a murderer would in the course of one turn victim, to kill another and then return to finish off the first. logic There is no such or order to mass murder. in logical
Nor is there a contradiction as the case of submit- reason) Kory (killing killing ting depravity both as to for no reason). (killing escape detection for a The court told the contrast, logically impossible. In jury that that was we believe legislative bespeaks qualitative judgment here that the factor logic experi- human intuition or that is consistent with and with Killing Kory worse was killed at the ence. Melva is because time; killing Kory you kill his mother same is worse when double-counting. at the same time. There is no Each murder reality inis worse. killing logic, “killing
And on the score of in the course of general “felony-murder” aggra- appears part another” of the vating applies factor that to a murder committed “while * * * of, or after engaged defendant was the commission felony].” committing attempting to commit N.J.S.A. or [a convenience, (For familiar word 2C:ll-3(c)(4)(g). we use the specific although instead to certain “felony,” our Code refers assertions, offenses.) Contrary defendant’s the statute does to determine rely temporal sequence of the murders not on the applies The factor application aggravating of that factor. commission of before, during, or murders committed after murders is not sequence time of the felony, so that application. dispositive of this factor’s Thus, murder victims robbery rape of the first of two or determining eligibility for death would be admissible illogical to allow Would it murder of the second victim. first victim but robbery rape to consider the the first victim the murder of not allow it to consider the murder of the second? determining eligibility death for *43 472 only the so that murder is be frozen
Why should the frames apply reciprocally? cannot felony that double-duty aspect of the may be made that argument produces the random killings of joint in the trial two factor Gregg in condemned Supreme Court that the United States ness 2909, 2932, 153, 189, 49 L.Ed.2d 96 428 S.Ct. Georgia, U.S. v. (discretion impose death sentence 859, (1976) jury 883 so as to minimize “suitably and limited directed must be action”). example, capricious For wholly arbitrary and risk later, the Kory a month first and then had killed Melva if Moore they (if separately as the cases were tried in Melva’s case jury be) yet-unproven not hear evidence of would probably would case, in Melva’s a conviction killing Kory. If there were however, factor of the would, aggravating jury hear Kory’s jury does not that Melva’s of Melva. The reason prior murder logical to it is not relevant or Kory’s killing is not that consider proven. death-worthiness, yet not been rather that it has but murder, a retrial for Melva’s Parenthetically, were there a later conviction consider the later-entered permitted to jury would be 110 Kory. Biegenwald, killing of State v. defendant for the II). 521, (1988) Each (Biegenwald 442 542 A. 2d murder, be no yet there would the later would have considered policy legislative factor. The same double-duty service jury should applies II here. The upheld Biegenwald that we killer before person of the to consider the whole permitted sentencing. particularly solution is Georgia nor California
Neither the
to be considered
permit the factor
helpful. Georgia appears to
court “arbi
sentencing jury, but then the
by the
reciprocally
aggravating
the court’s
trarily
eliminate^]
word]
[that
murder” of
penalty for the
supporting the death
circumstance
355,
State,
v.
248 Ga.
reciprocal victims.
one of the
Waters
1213,
denied,
103
238,
(1981),
463
367,
cert.
U.S.
283
250
S.E.2d
(1983).
comfort
3551,
That is of doubtful
1398
77 L.Ed.2d
S.Ct.
remaining conviction.
on the
awaiting execution
to a defendant
found,
are
Moreover,
aggravating circumstances
other
where
473
(killing in
reciprocal
aggravating
use of this
factor
killing)
require
of either sentence.
course of
does
reversal
420,
(1985),
State,
v.
cert.
Blanks
Ga.
S.E.2d
1479,
(1986).
denied, 475
forbids that the cannot conceive mining in each. We deathworthiness sentencing parse jury to have intended the Legislature would primary murders if some were and others out the to see Speck be considered as secondary. Would one such as Richard only once as one his victims? though he had killed to all but (1968)(in Speck, 41 Ill.2d 242 N.E.2d People See eight episode, one criminal defendant murdered course of house). Chicago young women town improperly application aggravat- 7. Did the trial court allow c(4)(c) ing factor to both victims? penalty phase, represented the start the State
Prior to produce any direct evidence it would additional support aggravating alleged. factors Defense counsel c(4)(c) aggravating (killing to then moved have factor vile, horrible, in that it outrageously wantonly or inhuman torture, mind, aggravated depravity of or an assault involved victim) regard killings. to both 2C:11- dismissed with N.J.S.A. motion, 3c(4)(c). factor The court denied that and submitted victims, c(4)(e) limiting Kory’s respect although it in both c(4)(c) depravity prong. case found factor aggravated on to exist in relation to both assault victims— depravity concerning Kory. now Melva and of mind Defendant challenge c(4)(c) his of the submission of the factor renews *45 findings alleges jury’s the further in relation jury, and the c(4)(c) against weight to factor of the evidence. were findings, jury’s Because of the this case and the we facts of analyze separately argument regard with to must defendant’s each victim. Melva, argued pre-penalty phase
As to defense counsel inflict no that defendant had intended to evidence existed However, pain. prosecutor alleged that physical or mental her, only kill hatred his wife drove him not defendant’s possible pain doing but inflict as as while so. much claim, support transcript prosecutor of his read the testimo- Gould, ny in he said that he believed psychiatrist Dr. which his punish pain wished to and inflict on wife. defendant report, indicated prosecutor autopsy also referred to the which that the painful blows to Melva’s head were and that she was conscious subsequent for at least one of the blows. Ramseur,
In State v.
supra,
explained
we
that the “essence
legislative
regard
c(4)(c)
concern
aggravated
to the
[in
battery/torture
mind,”
is the defendant’s state of
and
factor]
concern,
“[society’s
concern,
community’s
[and]
concern,
Legislature’s
punish
harshly
is to
most
those who
harm,
pain,
intend to inflict
suffering
addition to
—in
intending
207-08,
death.” 106
at
N.J.
The State
that there was sufficient evidence to
finding
Melva,
pain
stating
that defendant meant to inflict
on
“qualitative
in its
that a
examination
brief
of all
circumstan-
logical
produces concerning
tial evidence and the
inferences it
supports
defendant’s state of mind”
the conclusion that
upon
get
his hate for Mélva and his desire to
her out
“[b]ased
life,
pain prior
of his
he wanted her to suffer severe
to death
beating
repeatedly
her
the head.” The State cites the facts
Gerald,
(1988),
There we did
[the]
[was]
finding
insufficient to sustain a
that the defendant intended to
physical
suffering prior
or mental
and did cause” severe
66-67,
in
death.
Id. at
This
falls between Rose and Gerald. The
Gerald;
pain
vastly greater
tial for
this case is
than
approaches
McDougald,
case
State v.
N.J.
A. 2d
(1990),
killing
in which we
blunt-instrument
allowed the
c(4)(e)
In McDougald,
assault/torture
factor
stand.
accompanied by
on his
defendant's sadistic attack
two victims
statements
and his return to kill the
his vindictive
to one
other
factor,
c(4)(c)
clearly justified application of the
based on his
physical
suffering
manifest intent to cause severe
or mental
his
419. As
noted in
victims.
A.2d
we
Matulewicz,
191, 199-200,
State v.
115 N.J.
In this
it is certain that Melva suffered
as a
pointed
result of defendant’s attack. The State
to Dr. Gould’s
testimony as evidence that defendant intended for her to suffer
present
she
died. We conclude that
State did
sufficient
jury,
jury’s
evidence
submit that factor to the
and that the
against
weight
verdict was
evidence. On re
mand,
testimony
weighed carefully
Dr. Gould’s
will have to be
jury, especially
light
of defendant’s contention that
prosecutor
testimony
read the
out of context. The
consider
must
whether defendant intended to torture or inflict
harm,
“pain,
suffering
intending
on Melva
addition to
—in
*47
Ramseur,
death,”
188,
supra, at
524 .2d
or
N.J.
A
[her]
suffered,
horrible,
pain
although
whether the
she
was caused
killing.
the act of
regard
argued
Kory,
pre-penalty phase
In
defense counsei
“depravity
required
just
of mind”
more than
a senseless
killing,
of
and that the “ultimate issue was that it
done
act
was
pleasure
killing.”
of the
court
for the
refused to strike the
argued during
factor on that basis. The State
its summation
Kory
that defendant killed
“because he was there.” Further-
more,
prosecutor again
testimony,
Dr.
referred to
Gould’s
killing Kory
“totally
in
he
that the
of
a
which
concluded
senseless act without
motivation.” The State
reasonable
killing]
concluded that since
was no reason
“[t]here
[for
* * *
depravity
that’s what makes this a
of mind.”
“depravity
defined
of mind” as
Ramseur we
follows:
These words mark
concern to
those who murder
society’s
punish severely
meaning
distinguished
from those who murder
for a
without
or
purpose
(albeit
unjustified purpose).
This term isolates conduct
purpose
completely
greatest
and terror within an ordered
that causes
abhorrence
society,
because citizens cannot either in fact or in
themselves
from
perception protect
of
The killer who does it because he likes it,
these random acts
violence.
without
even because it makes him feel
who kills
better,
perhaps
bystanders
would indicate that
who kills children and others whose
reason,
helplessness
what we define as
of mind.
murder,
there was no reason to
evinces
depravity
(footnotes omitted).]
The trial court relied
e(4)(c)
applied
killing
to the
aggravating factor could be
that the
not, however,
helplessness
Kory.
did
intend that
We
c(4)(c).
child,
itself,
depravity under
But we
in
establish
that,
addition,
assertion
response
in
to defense counsel’s
note
in
definition of
Kory’s killing did not meet the Ramseur
that he did not
defendant claimed
“depravity of mind” because
why
Kory,
know
he killed
the trial court referred to another
Ramseur,
section of
depravi-
which
Court concluded that
* * *
ty
apply
of mind should
to “the defendant who killed
area,
just happened
because the victim
to be
no
for
reason at all.” Id. at
It is a close whether the randomness or senseless ness applies discussed Ramseur to this situation. The *48 argues defendant suggest that the record does not that he Kory pleasure it, killed for or for the thrill of but that his Kory attack on resulted from a moment of rage. instantaneous Although senseless, it could said be that the act was we do not analogous believe that it was to the acts of mass murderers or kill strangers pleasure. time, those who for At the same question Matulewicz, is closer than that in supra, State v. 115 198, 1001, at 557 N.J. A. 2d where the State made no claim that depravity-of-mind element had been satisfied when the defendant struck his infant child’s head and then shook her stopped breathing. until she balance, say
On jury precluded we cannot that a should be returning c(4)(c) from depravity finding regarding Kory on the basis that Kory defendant killed for no reason at all. It may seem to rage, enough us to have been but there is for a jury to find otherwise.
8. improperly Did the trial court mitigating exclude relevant during penalty phase?
evidence Defendant contends opinion testimony that exclusion of on proper punishment eighth- his violated his and fourteenth- rights amendment mitigating “any aspect offer as evidence of a defendant’s character or record and of the circum- stances of proffers the offense that the defendant as a basis for Ohio, 586, a sentence less than death.” Lockett v. 438 U.S. 604, 2954, 2965, 973, (1978). 98 S.Ct. 57 L.Ed.2d 990 The trial court excluded opinions by family as irrelevant friends and spared defendant’s life should pleas mercy, and their for .testify it to their for him although allowed witnesses love son, character, his his own love for his to his and to ask childhood. It also allowed defendant’s mother to troubled him give penalty.” “not to the death Court, Ohio, Supreme supra, v. The United States Lockett at 604 at n. at 990 438 U.S. n. 98 S.Ct. L.Ed.2d 12, expressly authority of the trial court to n. reserved irrelevant, bearing “as on the defendant’s exclude evidence not character, record, prior or the circumstances his offense.” scope of “character” This Court considered the such evidence Davis, (1984), we A. 2d 308 where N.J. 2C:ll-3c(5)(h) (including mitigating interpreted N.J.S.A. factors evidence “relevant the defendant’s character offense”). or to the circumstances Davis we record “ * * * can those ‘character’ and should embrace said qualities distinguish particular person.” 96 individual 618, 477 held at the A.2d 308. There we admissible phase capital trial data that would aid penalty of a statistical potential for evaluating “an defendant’s rehabilita individual 308. Id. at 477 A .2d tion.” *49 65, Rose, 61, 120 N.J. 576 recently,
More State v. (1990), mitigating for evi emphasized the need A .2d 235 we specific the defendant. There we held inadmissi dence to be to propriety of the testimony clergymen religious on the by ble effect, sociologist its deterrent penalty by a on death particular general, than to the finding testimony such rather 64-65, testimony A .2d at issue Id. 576 235. defendant. at statistical, here, similarly nonspecific to defen although not punishment is opinion on what character. A witness’s dant’s It state of mind. only the witness’s own appropriate reveals may be beyond whatever cannot reveal defendant’s character him. testimony love for from on the witness’s inferred admitted right” of allocution “narrowly-defined We decline extend defendant, Zola, supra, 112 at capital v. N.J. accorded State mercy. for 1022, plead We A. 2d to allow witnesses 548 find accordingly that it was within the discretion trial testimony. However, court exclude such uniquely it is witnesses, especially natural and human for some close family members, to plead mercy. impermissible wish to for Given the might plead that if a inferences arise close relative not did for mercy testifying, while within it was the trial court’s discretion permit testimony mother, such one as defendant’s long was not as it cumulative. trial improperly mitigat-
9. Did the court instruct on jury c(5)(h)? ing factor
Defendant contends that the trial also court violated his eighth- rights and fourteenth-amendment to admission of miti evidence, gating Ohio, supra, delineated in Lockett v. 438 US. 2964-65, 604-05, 990, by at at S.Ct. L.Ed. 2d at erroneous instructing ly mitigating on factor N.J.S.A. 2C:11- 3c(5)(h). jurors The court they instructed the could “con mitigation] sider anything relating concerning to or defen [in life, character, his dant’s his characteristics and the circum argues stances of crime under consideration.” Defendant improperly that that instruction was limited because it failed to expressly given instruct any indepen such factor could be weight dent explain failed to the kinds of factors that could He challenges considered. this instruction for first time appeal. on rejected independent-weight
We similar argument Ramseur, supra, 524 A. 2d where we independent held that the trial court “did inhibit the consid mitigating eration of factors.” There the instructed: “If court presented respect evidence has been with to a mitigating factor, you are bound weigh the law to consider it and it against any aggravating you factor or factors have found present.” to be Id. at A.2d 188. Here the court similarly: instructed *50 mitigating If there is evidence of a factor, must consider that evidence you give weight
and such it deem In other if words, you appropriate. any mitigating find to a and factor, you with has been respect evidence presented to consider mitigating it, are bound the law factor to be you by the present, aggravating weigh against factors have found to be present. you it any Ramseur, instruction, satisfies like the one that this We find jury the free to v. be requirements of Lockett Ohio the weight mitigating facts. give independent that the court inade reject defendant’s claim We also speci mitigating factors. Without scope the of quately defined c(5)(h), under to be considered fying the kinds of factors instructing: expansively, such factors court described mitigating whether it to be considered by you, appeared All evidence is during or from State, from witnesses called by the first of the trial part which will or from the evidence defendant, you called physical witnesses by during from trial, this room. Or if it phase have in the appeared either side. evidence produced requirement “that sen v. This satisfied the Lockett Ohio * * * considering mitigating as a precluded from not be tencer any character or record of a defendant’s any aspect factor, proffers that the defendant of the offense the circumstances 604, 98 at less than death.” U.S. for a sentence as a basis discussed previously have 2d at 990. We at 57 L.Ed. S.Ct. factors, v. mitigating see State explain duty the court’s 816; Bey v. at 575 A .2d State supra, 119 N.J. Pennington, 168-69, is no need to .2d887. There II, 548 A supra, any evidence of jury verdicts on basis separate for ask life or any aspect of defendant’s found catchall factor respect with unanimous need be character. Jurors 159, 548 II, 112 N.J. at Bey supra, mitigating factors. c(5)(h)factor Hence, may the catchall any juror find A .2d887. evidentiary or all of one present on the basis to be would have juror by the defendant. Such submitted bases aggravating doubt that beyond a reasonable convinced factors, mitigating outweighed the unanimously found factors qualitatively juror had factor as that including the catchall it. found *51 judge
10. Did the trial instruct on improperly jury the the requirements finding weighing aggravating for factors? by
Defendant
that the
court
asserts
trial
erred
instruct
ing
jury
penalty phase
at
imprisonment
the
the
that life
would
unanimously
if it
aggravating
result
found no
or unani
factors
mously
aggravating
outweigh
found that the
factors did not
the
mitigating
argues
factors. Defendant
that those instructions
gave
impression
imprisonment
erroneous
that life
would
findings
if
only
Clearly,
result
those
were unanimous.
unanim
required
negative findings
factors,
ity
aggravating
is not
on
although
required
positive findings.
it is
on
N.J.S.A. 2C:11-
3c(3)(a),
II,
Bey
supra,
construed in State v.
question for that crime for the term of described up years previously imprisonment to life. Moreover, penalty-phase jurors sheet that the verdict shows reject only unanimity required understood that was not factor, required to unanimity an also that aggravating but concerning They depravity found no of mind Melva find it. against. a in favor vote of ten to two charge, conveyed to the of the entire which In the context unanimity positive findings, on we jury requirement of charge misleading preju no that the somewhat caused believe confusion, however, remand the To on dice to defendant. avoid uniformly that jury should take care to instruct trial court required imprisonment. unanimity is not for a sentence of 346, (1990). Clausell, 298, .2d 221 A State v. N.J. it could jury informed the that judge the trial have 11. Should regardless a life the outcome return verdict process? weighing unanimously found although jury argues
Defendant that factors, the outweighed mitigating factors aggravating that appropri that death was the of a further determination absence guarantees against and federal punishment violated state ate argument punishment. rejected that unusual We cruel and Ramseur, n. .2d188. supra, at 316 524 A 106 N.J. State v. jury fully is aware of its explained long as the that as There we verdict, specific finding that sentencing for the responsibility Ibid.; unnecessary. is appropriate punishment” an “death is (no Zola, supra, 548 A .2d 112 N.J. see specific finding required long incantation or as instructions jury’s impart obligation). any find no in the jury
We error absence of admonition to the despite it could weigh- that exercise discretion the result of its ing aggravating mitigating factors. judge
12. Should trial have informed the that there is presumption against penalty? the death argues imperative Defendant that this Court’s that beyond prove “the State must a reasonable doubt that factors,” aggravating outweigh mitigating factors State v. 13, 67, (1987), Biegenwald, 106 524 .2d130 A constitutes a presumption against penalty analogous pre death to the sumption argues He innocence. further an instruction presumption constitutionally on required. We ruled in Rose, supra, however, State v. N.J. at 548 A .2d principle requires no of state or federal law constitutional “ ‘presumption’ an instruction on against such the death *53 penalty.”
C. Gerald Issue Defendant contends that he was denied the benefit of a charge Gerald, 40, in accordance with 113 supra, State v. N.J. 792. 549 A.2d In that case we that in to ruled order establish eligibility, jury death must determine that defendant knowledge purpose had the knowledge or to kill and not the or purpose merely bodily injury happened to inflict serious jury’s result in death. The verdict must establish knowledge case, had In purpose defendant or to kill. this problem charged the trial court foresaw the Gerald and capital only crime having murder terms the defendant’s knowledge purpose or jury to kill. The that verdict returned object on the the charge verdict sheet. Defendant did (SBI) separate charge ask for on serious-bodily-injury murder.
485
charges.
manslaughter
receive
Because we
Defendant did
matter,
remand the
we need not resolve on this record
must
charged
plain
it was
error not to have
SBI murder
whether
464,
Long, supra,
v.
119 N.J. at
State
separately.
575 A .2d
guidance
435. We add these comments for
on remand.
spectrum
This case falls on the
of decisions somewhere
Pitts,
supra,
580,
1320;
v.
116 N.J.
State
between
562 A.2d
Hunt,
1259;
supra, 115
v.
330,
v.
N.J.
State
State
A.2d
407,
483;
Harvey, supra, v.
N.J.
State
581 A .2d
and
(State
McDougald, supra, 120 N.J.
v.
A.2d 419.
Jackson,
Davis,
(1989),
341, 561 A.2d1082
116 N.J.
(1990)
plea cases in
N.J.
On the remand he considering by a defense Moore that jury from foreclose the kill did not intend to his wife but lost control of himself and her, die, causing intending her to without her struck death. blows, severity likely Given the force and it is not that a story, jury jury will credit this but it is for a to decide. Kory, likely In the case of it seems much less that there any would be rational basis from which it could be inferred that repeated baby’s hammer blows to the head could form the basis accident; charge. may of an SBI murder Moore’s defense be in manslaughter, that event the crime could be not murder. How- ever, assuming finds the blows were intentional and accidental, hardly possible it seems such an actor would not result, practically thereby satisfy- be certain that death would event, ing prerequisite In any mental-state to murder. we conjecture proofs cannot now as to what the will in a new proofs, trial. including The remand court must consider all the any only assertion the defendant that he intended serious bodily injury, to determine whether there is actual basis to charges jury. submit SBI to the
IV Summary and Conclusion record, completeness points For we note the in raised Ramseur, supra, defendant’s brief that were decided in Biegenwald, supra, 524 A.2d N.J. 130, specifically, challenge A. 2d defendant’s to the constitution ality penalty Jersey, death New both on its face and as applied. any departure We have considered whether should be prior rulings our on made from these issues and have concluded departure justified. that no disposition unnecessary it Our of this case makes to under- proportionality requested by take the review defendant under County 2C:ll-3e. We note that the various Prosecu- N.J.S.A. tors, General, Attorney adopted with the consultation have guidelines throughout determining for use the State
487
capital
Koedatich,
selection of
cases.
supra,
See State v.
112
258,
N.J. at
In addition to the murder defendant was convict weapons Disposition ed of offenses. weapons offenses 439, 504-05, will abide the retrial. 119 Long, N.J. 575 (1990). A .2d 435 pivotal appeal issue in this is one of non-capital constitu
tional law.
the
Supreme
Until
United States
rules other
Court
wise,
may
imposed
no burden
on a defendant to establish all
any part
or
of an affirmative defense based on diminished
mental capacity.
supra,
v. Beyer,
Humanik
He
rising
then whether a
beset
with
safeguards
incidence of crime could continue to afford such
necessary price
pay
defendants: “Is it a
for
fairness
process
Watts,
which we know as ‘due
of law’?”
supra, 338
*56
(Jackson, J.,
at
69
at
U.S.
S.Ct.
EXHIBIT convenience, juror’s typed handwritten answers been [For have identifying us. Personal has information been omitted.] QUESTIONNAIRE
JUROR 1. Name No. G_G_Juror _ Address_ 2. ; Check X parents A. one: Live Rent_; Own with present B. Years lived at address: yrs. Jersey: C. Years lived in New Smithfield, Age: D. Place of Birth: Va. ; ; (check one) 3. Marital Status: X Married Divorced Widowed_; Never Married Separated_; Employment 4. Data: your occupation: What A. is Home Maker_ _ Employer: B. Name _ City you C. where work: _ you work, supervise many? D. If others at how _ job: E. Years at this occupation: Spouse’s Expediter_ F. _ Spouse’s employer: G. occupations employers, your ages, their children’s 5. List any: Guard_ if 37—US Coast Military 6. Service: Branch _; Yes No _; _; Juror: Years _ ; ;. Branch Air Force Spouse: Yes X No US _; Years 2k one) (check you completed highest grade of school 7. What college graduate high _community than school _less high graduate year college graduate _4 X school explain) (please school__other _vocational/technical college - _some yrs married, spouse’s highest grade High_ of school If 8. juror you in a crimi- Have ever served as a 9. XNO YES nal case X you NO_YES Juror Have ever served as Grand 10. you in a criminal 11. Have ever been a witness X YES_ NO case relative, you, ever or a close friend 12. Have NO_YES_ of a crime been the victim relative, ever you, a or a close friend 13. Have *57 NO X YES_ a crime been convicted of you any friends have relatives or close 14. Do any police or other or were officers who are X type YES_ NO of law enforcement officers why you judge any could not there reason 15. Is police testimony the same of a officer any YES_ NO X witness standard as other charges anything which about 16. Is there being to prevent you from fair both would X YES_ NO to the defendant the state and anything you about this Have heard or read 17. X YES_ NO case any your or you close friends Have or 18. experience psychiatry YES_ NO X any with had relatives experi- so, anything about that If was there 19. you that still bothers or troubles ence psy- psychiatry or you 20. Have ever studied YES_ NO X chology long so, long ago how and for 21. If how psy- any you read articles about 22. Have ever YES_ X psychology NO chiatry and you so, you read and have If how much have 23. any opinions? formed ever you friend or relative Have or a close 24. psychiatrist or sought assistance of personal problem X YES help NO psychologist with a to so, you experience If helpful you your
25. do think this to or _ _Why? friend or relative? you everyone depression Do 26. believe that can overcome and/or negative merely by becoming positive other mental attitudes more by setting Why? in their outlook on life their to it? minds No help Professional is needed you anything psychiatrists 27. Have read or heard about the use or so, psychologists in criminal No trials? If what? you debilitating physical 28. Do think be mental illness can as as a meaning [debilitating] don’t illness? Do know the word you psychiatrists any likely recognize 29. think that are more people and understand illness mental and behavior than are with background? no such Yes you any opinion psychiatric Do expert 30. have about use of testimony in a criminal trial? No you judge testimony psychiatrist 31. Would be able to of a not, way any why same other witness? No If not? Not familiar his with method you automatically psychiatrist 32. Would assume that a in was correct you his your evaluation or would be able reach own conclusion try my testimony? based on all of the I would to reach own conclusion why you you Is 33. there reason feel would unable sit and may evaluating decide a one case which of the issues involve psychiatric testimony? Yes. Because I’ve never come in contact psychiatry with the evaluation of HANDLER, J., concurring part dissenting part. defendant, Moore, The Leon Samuel was- tried for the mur- ders of his and son in wife June of 1987. Defendant admitted committing killings, relied the affirmative but on defense of diminished capacity. guilty knowingly found him victims, and, further, purposefully killing aggra- both vating outweighed mitigating regarding factors factors each Accordingly, victim. trial court sentenced defendant *58 killing. death for each The Court now reverses the convictions capital for murder and death sentences.
The
of
Beyer,
Humanik v.
light
Court determines that
—
denied,
(3rd Cir.),
-,
cert.
U.S.
S.Ct.
F. 2d
(1989),
charge
jury
unconstitutionally
The Court also addresses other
sur
trial, finding
rounding
guilt-phase
several erroneous or
problematic,
they
pro
but concludes nevertheless that
do not
grounds
additional
for reversal of the murder convictions.
vide
however,
my opinion,
some of those trial events warrant
scope
improperly
I
the trial court
limited the
reversal.
believe
authority
questioning.
I believe on the
voir dire
(1988),
Gerald,
there
dant’s grounds justify reversal of not determine whether other would sentences, I although a number of them. the death it discusses sen- reversals of the death additional reasons warrant believe c(4)(g) was aggravating factor tences. I am of the view Moore, application applicable respect to Melva but that with erroneous. Kory Moore was of that factor to the murder constitutionally-nar- Further, used the although the trial court c(4)(c), I believe that aggravating factor rowed definition that factor to the evidence to submit there was insufficient *59 492 killing Kory I find
in relation Melva Moore. also to Finally, I prosecutorial that misconduct tainted sentences. personal- permit refusal to defense conclude that the witnesses express that ly familiar defendant their beliefs he with prejudicial. mercy was unfair and deserved explain on separately I write those several issues to more why emphasize fully requires their resolution reversals and to rely expressly those additional Court’s failure on grounds ought misinterpreted, signify not to be that the underlying insignificant in errors are somehow or tolerable Further, view, my in prosecution capital-murder causes. capital- cogent grounds concluding are for that the there State’s unconstitutional, enacted, construed murder statute is and Ramseur, 123, 343, See, applied. 106 524 e.g., State v. N.J. (1987) (Handler, J., dissenting). .2d 188 I remain convinced A impugning capital-murder prosecutions that these reasons are however, case, persuasive, In this I it if not unanswerable. find that, grounds in unnecessary repeat my fundamental statute, capital-murder stating opinion, serve to invalidate the in only applicable light that such reasons remain relevant and jurisprudence. evolving capital-murder E.g., of the nature Frisco, 253, 283, (1990) .2d 914 v. Di A N.J. (Handler, J., concurring part). part dissenting and
I. capital-murder prosecution, have that in We stressed delicate, death-qualification process “important, and com inquiry plex,” requires “thorough searching” into II, “jurors’ opinions and biases.” State Williams 393, 413, (1988). Significant errors this case 550 A.2d relating to adequacy involve the voir dire certain yet trivializes important subjects, which the Court identifies concluding questioning in each “as a whole” was instance adequate. subjects
One of the
erroneously
circumscribed in the
jury voir dire related to the status or condition of the victims.
*60
446-447,
Ante at
fication
area.
unsearching
juror
That
and abbreviated examination into
feelings engendered
pregnancy
infancy
of the mur
deficiency
juror-qualifi
victims constitutes a serious
in the
der
process.
inquire
It was tantamount
to the failure
cation
sufficiently
any juror
mitiga
“into whether
could consider the
...,
[effectively denying]
tion evidence
counsel and the trial
panel
court the tools with which to insure that the
could
fairly
penalty phase]
undertake its role
in this case.”
[at
II,
1172.
Williams
550 A.2d
That omission is
telling
particularly
prominence
in view of the
that the status of
acquired
in the course of the trial.
victims
at 462-
Infra
466,
With
jurors’
abilities to credit
psychiatric
presented
evidence
in support
factors,
mitigating
in failing fully
error
explore juror
feelings
attitudes and
is
particularly
noted,
serious. As
two of the mitigating factors
presented at the penalty phase involved defendant’s mental
condition. As this
explained
II,
Court
supra,
Williams
sentencer has
constitutional obligation
to consider the evi
presented mitigation,
dence
capabil
and failure to
ensure
ity
to do so is error. 113
A .2d 1172. As it
out,
turned
unanimously rejected
mitigat
one of these
ing factors and
against
Thus,
voted eleven to one
the other.
the shortcomings in the voir dire cannot
lightly.
be treated
the absence of
probing
explore
possible
voir dire to
juror
existence of
antipathy
psychiatric evidence,
toward
there
can
any juror’s
be no assurance that
rejection of
mitigat
those
ing factors was not the
unexposed
result of latent
bias.
. Those errors are not candidates for
disposi-
harmless-error
tion. Defendant’s
right
constitutional
to a fair trial does not
diminish
relation to the
guilt garnered
amount of evidence of
by the State. “Even in a case
guilt
... where the evidence of
compelling,
right
to a
diligently protected
fair trial must be
defendants,
to insure that all
regardless of the
charged
crime
weight
or the
*62
produced,
of the
by
evidence
are tried
a fair and
impartial jury.”
II,
supra,
Williams
II. again betrays laxity This case and ambivalence that the respect admissibility expert Court has manifested with to the testimony capital-murder prosecutions. part As of the case-in-chief, Jersey State’s New State Police Detective Thomas expert blood-spatter analysis. McCormick testified as an testimony killing That offered to Kory was show that the accidental, knowing purposeful Moore and rather than as significant extremely defendant claimed. Without that —and problematic testimony, jury’s might determination have — markedly been different. qualifi-
The trial court found the detective to have sufficient testify expert. cations to as an The Court recounts Detective qualifications: McCormick’s He had been a member state police eight years assigned for and to the Crime Scene Investi- gation years Unit for testimony; two at the time of his his photography, duties consisted of crime-scene evidence collection attendance; fingerprinting, autopsy and he had attended a Jersey six-week course termed “New State Police Forensic School,” one-day Science which included a seminar in blood- spatter analysis. Additionally, he had attended another “one day given by seminar” crime-scene-investiga- member of the training tion unit in turn who had received someone area, get “schooled” in that and he in-service “continue[d] training.” investigated McCormick had two hundred over scenes, thirty homicides, crime at least of which were and had previously expert fingerprinting testified an and crime- analysis. scene The witness had never before testified as a blood-spatter-analysis expert. at 884. Ante A.2d testify expert,
Evidence Rule 19 states that as an required “experience, training, witness must have the or edu- expert suitably cation.” A witness offered as an must “be qualified possessed specialized knowledge of sufficient express opinion explain be able to such an and to the basis of Odom, 65, 71, opinion.” A.2d
497
(1989) (quoting
178, 208,
v. Kelly,
97 N.J.
We
sufficiency
qualifications
of the
“[t]he
experts
primarily
a matter for the trial court’s discre
[is]
only
tion and will be reviewed
for manifest
injustice.”
error and
Ravenell,
171, 182,
(1964),
State v.
43 N.J.
There was no evidence to establish that this
constitut
acknowledged
expertise,
ed an
field of
such as the witness’s
knowledge
uniformity
of results or
scien
reasonable
Zola,
tific basis for such studies.
See State
446-48,
(1988) (Handler, J., concurring
part
community.
Kelly, supra,
210,
State v.
This is not the first time the opportunity Court has had the blood-spatter decide whether analysis is an area sufficiently scientific justify expert testimony. capital-mur another case, Johnson, der (1990), State v. 576 .2d N.J. A issue, expressly this Court declined holding to decide the in stead that “the probative limited value of that evidence with regard to the facts it was offered prove substantially is outweighed by the risk that its admission will create substantial danger prejudice.” of undue (citing Id. at 576 .2dA 4). The reasoning apply Evidence Rule same should here. The objective relating forensic killing to the manner of the evidence proffered expert testimony was abundant and the contributed probative prejudice. little worth but added enormous proofs blood-spattering The State offered no evidence is accepted by profession. those in the The trial court did not judicial opinions bother ascertain whether indicate that blood- spattering analysis gained general has acceptance within the community experts. Accordingly, the opinion testimony was patently incompetent should and not have been admitted. yet aspect
There
another
to the error in the admission of
expert’s testimony.
It is
expertise
essential that the
opinion
witness coincide with the
of the witness. See State v.
Odom,
supra, 116
560 A.2d
If
expert’s
1198.
opinion goes beyond the foundation and
underlying
limits
expertise,
opinion
then that
cannot be credited.
Ibid.
In this
case,
apparent
it is not
rudimentary
how McCormick’s
training
explain
him
enabled
to reach and
his
conclusion
Melva’s
indirectly
Kory’s overalls,
blood had been
transferred onto
angles
paths
splatters
that the
the wall
on
indicated
*65
body
of
position Kory’s
when he
impor-
was killed. More
tantly,
testimony clearly implied,
personal
as a matter of
opinion, that
purposeful.
the murder had been
and
intentional
However, nothing
concerning
background,
related
the witness’s
training,
experience suggests
or
that there existed within the
community
acknowledged
expertise
scientific
an
of
level
produce
would
valid and reliable conclusions that a killer’s state
evidence, or,
of mind can
extrapolated
blood-spatter
from
important,
more
that the witness
this case had this level of
Hence,
expertise
sophistication.
and scientific
there was an
expertise
insufficient foundation in terms of the witness’s
express
him impliedly
explain
enable
and
conclusion
a
with
respect to the
of mind
time the
killer’s state
at the
mortal
wounds were inflicted on
victims.
v.
See Nesmith Walsh
—Co.,
N.J.-(1991)
2-3).
follows,
Trucking
(slip op.
It
conclusion,
also,
expression
that the
of such a
one without an
expert
explanation,
foundation or
sufficient
constitutes
“net
case,
In
opinion.” Ibid.
the context of this
which the
sufficiently qualified
expert,
witness was not
as an
and his
explanation,
opinion
supporting
implying
conclusion lacked a
his
expressed
that the homicide was intentional
a determination of
and
that is
to a
a critical
ultimate fact
tantamount
determina-
guilt
first-degree capital-murder.
transgress-
It thus
tion of
guilt
innocence.
jury’s
responsibility
es the
sole
to determine
Odom,
(adequate-
supra,
116N.J.
husband and wife were found blood-spatter testimony police detective Reeves offered shot; prostrate to show that the husband had lain when more the wife had been struck than once with ceramic vase injuries; had suffered a minimum of seven and that the struggled suggest wife had with her attacker. State also blood-spatter testimony ed that the contradicted the defense murder, theory participated that others had in the because the testimony indicated that the attacker acted alone. Id. at .2d 576 A 834.
This Court stated: The record demonstrates that the medical examiner had established the already cause of death the extent Reeve’s assault. was testimony merely cumulative on those issues. Information about of the house where parts though startling, the attack had taken and the of the blows, place directionality Although neither the intent nor the of the attacker. identity proves largely is not it irrelevant, other, corroborative testimony essentially indicating unchallenged the manner of it Thus, death. testimony only guilt. of defendant’s minimally probative Although the was of limited its value, blood-spatter testimony only probative danger prejudice admission created a substantial of undue to defendant. lengthy Reeve’s to numerous crime-scene presentation exposed photo- *66 graphs depicting depicting the victim’s as well as slides bodies, forty-two highlight which Reeves used to his in the blood-spatter exemplars, expertise extending area. over the course of an entire could trial, Such testimony, day jury’s gruesome but focus the attention on the details of the condition help guilt. [Ibid.] of the rather than on defendant’s bodies, victims’ Here, blood-spatter testimony simply was not corrobora Kory tive of other It was offered to show “that was evidence. him,” lying on the floor when the blood reached and that he position.” final “probably struck at least twice while his Although 883. the medical See ante at 585 A.2d at examiner Kory testified that had by “multiple been killed blunt impact,” and in detail the Kory’s described lacerations of head and the bones, comminuted fractures of the underlying McCor- blood-spatter testimony mick’s purported posi- to describe the Kory tion implied he intentionally had been killed. It extremely prejudicial. Johnson, was thus As in presenta- exposed tion jury to numerous crime-scene photographs depicting the victims’ battered blood-spattered bodies and the apartment. sum, McCormick’stestimony on the critical issue of intent right process
violated defendant’s to due and a fair trial under the sixth and fourteenth amendments to the federal Constitu- parallel provisions Constitution, tion and the Jersey of the New and the clearly capable affecting error was the result of his Hence, disagree case. I acceptance with the Court’s of that testimony solely based on the trial court’s discretion.
III. although Defendant contends that the trial court determined pregnancy that Melva Moore’s was relevant and admissible in phases proceeding, both of the through error occurred prosecutor’s excessive use of that evidence and the trial court’s give clear, decisive, corrective, limiting failure to seemingly agrees, instructions on its use. The Court but it severity prejudice. simply expresses minimizes the of the It the admonition that both court and counsel shall “[on remand] pregnancy properly insure that the evidence of limited to its probative purposes” against and the additional “caution unnec essarily dwelling pregnancy on the at retrial.” Ante at .2d at I A 887. differ. During guilt-phase opening, prosecutor repeated his made wife,” “pregnant references to Melva Moore as defendant’s indicating pregnancy without ever that the would be shown to particular significance have relevance issues trial, the case. At witnesses testified to the fact that various including pregnant, Melva was the medical examiner who au- *67 her, although prosecutor made no effort to tie the topsied pregnancy to the murders. guilt-phase prior verdict and commencement
After
requested
penalty phase, defense counsel
that the court
substitute,
expo-
to its
discharge
empanel
due
information,
as the
prejudicial
to irrelevant and
such
sure
refused, finding
pregnancy
The court
that the
was
pregnancy.
mind,
of state of
even at the
relevant circumstantial evidence
indicating
cautionary
instruction
penalty phase, and
However,
patently
given if desired.
the evidence was
would be
phase.
prosecutor
by
prosecutor
penalty
at the
abused
objection
argue
permitted
over defendant’s
wanting
killing
pregnant
probative
Melva was
to cause
anguish
the child she
mental
because she would know “that
never,
a breath of life.” The
carried would
never breathe
pregnancy.1
prosecutor
repeated
made
references to Melva’s
pregnancy
of the references to Melva’s
The claimed relevance
clearly
penalty-phase charge
the court’s
which it
belied
termination
jurors
pregnancy
that the
and its
instructed
you
aggravating
factors under the law that
have
“are
not,
uphold
[y]ou
you
shall
must not consider
sworn to
...
upon
pregnancy or the effect of the defendant’s acts
either
aggravating
fetus as an
factor.”
prosecutor
1 The
made these remarks:
you
purposeful murder of “his
stands before
convicted of the
[D]efendant
wife”;
pregnant
murder his
defendant’s hate and self interest led him to
out;
"pregnant
"pregnant
he
wife” to move
he murdered his
wife" because
in;
girlfriend
his
to move
defendant is a man who murdered
wanted his
reason; weigh mitigating
against
“pregnant
no
evidence
wife”
son for
wife”;
"pregnant
“pregnant
to his
defendant hated his
the harm done
dead;
wife”;
lay
"pregnant
phone
answered the
while his son and
wife”
he
wife,
out”;
pregnant,
sought
defendant
to have "his
move
defendant
woman;
woman,
pain
pregnant
“So here is this
wanted to inflict
on a
herself,
protect
pregnant
trying
caused Melva mental
..defendant
survive;
pain
consider the harm
because she knew her fetus would not
"pregnant
done to that
woman".
*68
imagination could
if
evidence
some stretch of the
Even the
relevant,
been
considered
it should nonetheless have
have been
because
as an exercise of the trial court’s discretion
excluded
outweighed by
significantly
probative
its
value “is so
[its]
probable capaci
inherently inflammatory potential as to have a
jurors from a reasonable and fair
ty
the minds of the
to divert
59
Thompson,
in the case.
v.
evaluation” of the issues
State
396, 421,
(1971).
attenuated and
283
513
The “more
A.2d
N.J.
evidence,
appropriate
the more
it is for a
probative the
the less
Medina, 201
4.”
judge to exclude it under Evid.R.
State
denied,
565, 580,
(App.Div.),
N.J.Super.
493 A.2d
certif.
455, 471,
(1985);
Mathis,
508 A .2d185
State v.
N.J.
N.J.
(1966) (evidence
financial need
of defendant’s
I that the trial court its abused discretion failing pregnancy testimony exclude under Evidence particular, In wholly Rule 4. the trial court failed to consider weigh prejudicial against and effect of that evidence only respect guilt its asserted relevance with but also its relevance, any, respect if with to whether defendant deserved 439, 515-17, to die. Long, See State v. 119 N.J. 575 A .2d435 (1990) (Handler, J., dissenting concurring); State v. Pen 547, 605-09, (1990)(Handler, J., nington, 575 A .2d816 concurring part dissenting part). addition, anything the trial court failed to do to correct or
mitigate the effects of the erroneous
admission
that evi
*69
though
dence. Even
request
defendant did not
an Evidence
instruction,
Rule 6
it
error
was
for the trial court not to have
given
view,
sponte.
my
application
one sua
In
the
of that rule
necessarily triggered
by
is not
party
excused
whether a
application.
Rose,
seeks or resists its
See State
(1988) (Handler, J., dissenting).
IV. Fundamental error also jury’s contaminates the determina- tion that defendant deserved to die for each of the murders. aggravating respect factors with alleged The two State (a c(4)(c) killing physical with intent to cause mental or Melva: (a killing depravity), c(4)(g) and committed suffering or with killing, Kory). of another that of during the commission c(4)(c) Kory: aggravating relating factors alleged three c(4)(f) (a (a killing), killing prevent defendant’s depraved (a murder), c(4)(g) killing committed detection for Melva’s Melva). With killing, of another that of during the commission finding factor c(4)(g), jury was unanimous in this respect to present killings. in both
A. constitutionality aggravat challenges the Defense counsel situation, under c(4)(g) applied to a double-murder ing factor reciprocal argues He that the circumstances of this case. eighth c(4)(g) factor here violated aggravating use of Constitution, and article to the federal fourteenth amendments addition, I, Jersey paragraph 12 of the New Constitution. aggravating factor cannot be contends that defendant aggravate the applied to killing of Melva and based on language, it stressing statutory when Kory, murder of of anoth during the commission speaks of a murder committed already in murder, killing complete or “suggests that one er also place.” Defendant homicide takes process when another “splintered what should in his case prosecutor that the states charging two” aggravating factor into single have been because, other, killing in the course each occurred *70 place during the killing take only one could “logically speaking, dis cites this Court’s Defendant further of another.” course 123, 174-76, II, A. 2d 887 Bey 112 N.J. in cussion inflating aggravating artificially (1988), of the hazards when each if occurs factors, that even that which and contends a permissible, such the other is aggravate to killing is used protect to explanation to the an clearly demands situation The extra-counting evidence. or against over-accumulation 469-474, 585 A.2d Ante at rejects these contentions. Court 889-891. view, is that order argument, my fundamental
The most aggravating factor subject to an charged murder to be for a murder, must one charged murder consisting of another consequence probable during course of and as that arises That, believe, I reflects murder. of the other the commission intent, derived from which can be legislative the clear crime of of the substantive analogous legislative treatment felony murder. provided: c(4)(g) originally as
Aggravating factor enacted engaged in the commis- the defendant was was committed while The offense attempting committing flight after or or commit, or an of, attempt sion kidnapping. [N.J.S.A. burglary assault, arson, sexual commit robbery, 2C:ll-3c(4)(g).] Legislature intended infer that It is reasonable to felony-murder doctrine into elements of the incorporate appli- c(4)(g) as aggravating factor governing the standards enacted, c(4)(g) contem- originally capital-murder. As cable qualified as charged murder otherwise plated that if the capital-mur- aggravate the crime of felony-murder, it served to c(4)(g), refers language of which evident from the der. That is in the engaged “while defendant to a murder committed virtually That standard felony].” commission of ... [a defining the substantive statutory standard identical to the 2C:ll-3a(3). is, then, It to be felony murder. crime of N.J.S.A. parallel language, by the use of Legislature, inferred that aggravating factor be identi- qua felony-murder intended qua murder. felony-murder cal to with c(4)(g) was amended language of factor The L.1985, 178. of felonies. c. to the list murder added explained: bill drafters of the amended attempting committing or a murder committed while law, the current Under aggravating is an assault, or sexual to commit another such crime, robbery among include murder itself Bill No. 950 would amended, factor. As Senate during of another the commission murder committed those so that a offenses, aggravating Committee circumstance. Judiciary would be an [Senate murder c. A. 178.] No. Statement, *71 legislators, reasonably It is evident that the the addition of aggravate murder to the list of felonies that can enhance or a murder, charged predi- intended that "murder” function as a in felony constituting aggravating terms of the factor of cate c(4)(g). consequence, felony-murder
In the embraces the doctrine c(4)(g). determining that define In the elements of principles murder, felony crime of we have ruled that in the substantive murder, felony during to constitute a murder committed order felony probable consequence of a must be a the .commission 2, 27-28, Martin, 573 A. felony. State v. 119 N.J. 2d 1359 the (1990). Martin, felony In the we traced evolution Jersey in and determined that a murder doctrine New court charge felony-murder prosecu on in a the causation must is at A. 2d 1359. A tion when causation issue. Id. felony a nexus jury must find that sufficient exists between murder, resulting resulting the murder not too remote, accidental, improbable. or Ibid. It follows that adding accompany murder the felonies that can an convert aggravating factor of ing “felony-murder” murder into the presumably accompa that the c(4)(g), Legislature the intended murder, murder, charged occur the defendant nying while murder],” and engaged in the of ... “was commission [another “probable consequence” of the of that commission murder.
Moreover, charged though accompanying, murder is even independently renders the defen- knowing, intentional presumably it still guilt, as a matter of must eligible dant death felony-murder satisfy requirements shown aggravating factor of order constitute standards words, must accompanying murder consti- c(4)(g). other initial, charged or consequence” predi- “probable tute a murder, way accompanying an murder just the same cate predicate felony related to a have to be connected or would felony-murder. than to be considered other homicide in connection Here, state of mind regardless of defendant’s focused on—nor Kory, was not the evidence with murder *72 argued by killing probable this was it the State —whether was Rather, consequence appears of the murder of it Melva. from arguments Kory’s killing the evidence and State’s was separate, independently by and unconnected intended defen- significantly, jury dant. More the was not instructed to consid- er or asked to determine whether there was a sufficient causal nexus the two murders. between aggravating capital
The critical of in a function factors scheme, implies, punishment identify the label is to those distinguish killings society circumstances that the intentional punishment deems warrant the of death from those do not. 231, 244, 546, Phelps, 554, 484 See v. U.S. 108 Ct.S. Lowenfield 568, (1988)(“The ‘aggravating 98 L.Ed.2d 581-82 use of circum genuinely is ... a of the narrowing stances’ means class of death-eligible persons thereby jury’s and channeling the discre tion.”); 153, Gregg Georgia, 197-98, 2909, v. 428 U.S. 96 S. Ct. 2936-37, (the (1976) 49 aggravating L.Ed.2d 888 factors require jury the to consider “the the crime circumstances of sentence”); it II, the criminal before Bey recommends see supra, felony-murder A .2d887. Like the (where felony rule itself intent commit is transferred to killing), of felony commission is a harmful act condemned society justifiably subjects greater penal a defendant to if consequences the results include of a the commission murder. Thus, language contemplates killing statute that the fault; aggravated greater is because defendant’s it occurred engaged because the defendant was in other criminal behavior that, law, generated our under a real risk that someone would be killed. aggravating e(4)(g) something
The
entail
factors
more than
They require
coincident dual murders.
a connection between
murder,
charged
aggravating
murder and the
the same
required
predi-
connection
is
between
murder and the
felony
felony-murder.
cate
to constitute
That
standard
sim-
felony-murder
ilar
special
to California’s
circumstance that can
capital
culpability
increase
murder. The California felo-
was
special
provides
circumstance
that “the murder
ny-murder
engaged in ...” nine enumerat
while defendant was
committed
felonies,
among them.
Code
murder not
Cal.Penal
ed
Green,
190.2(17).
609 P.2d
People
Cal.3d
§
(1980),
estranged
defendant had taken his
wife
Cal.Rptr. 1
her,
departed
her
killed
and then
with
spot,
a secluded
effectively told
clothes,
purse.
prosecutor
had
jewelry, and
robbery
finding that a
had occurred would
that the
felony-mur
finding
special
to an affirmative
tantamount
error,
court, however,
“it
found
because
circumstance. The
der
guilty of a
jury to find the defendant
enough
for the
*73
crimes;
required
the statute also
one of the listed
murder and
‘during
the murder
jury
the
find the defendant committed
at
attempted
of that crime.” Id.
commission
the commission
504,
explained:
59,
Cal.Rptr. at 37. The court
at
164
P.2d
legislative
it
not unconstitution-
a
belief that was
The
thus expressed
provision
in cold
those defendants who killed
to the death penalty
ally arbitrary
expose
e.g., who carried
felonious
in order to advance an independent
purpose,
blood
slaying
to a
a
the victim of or witness
holdup,
of
out an execution-style
kidnapping,
at
Cal.Rptr.
505,
38.]
at
609 P.2d at
[id.
or a
rape.
poor fit of that
proofs indicated the
found that the
The court
case,
it
not in fact a
the
“that was
aggravating circumstance to
opposite,
the exact
a
robbery
of a
but
in the commission
murder
609 P.2d at
of a murder.” Id.
robbery in the commission
at 38.
Cal.Rptr.
distinction.
It
Here,
ignores
fundamental
the Court
statutory
principle nor
“neither constitutional
concludes that
in
reciprocal
murders
double
jury
to consider
intent forbids
A.2d
Ante at
in each.”
determining death worthiness
statutory intent.
mispereeives the
simply
The Court
at 891.
underlying this
Green,
legislative intent
I
the
in
believe
As
charging only that the
effected
factor is not
aggravating
during the commis
killed
Melva Moore was
jury could find that
Rather,
factor
aggravating
Kory.
this
of the murder
sion
to conclude
jury
able
only if the
were
could be established
probable
killing
Kory’s
was
doubt that
beyond a reasonable
parallel those
consequence of Melva’s. The instructions should
Martin, supra, 119
felony
murder. See State v.
applicable
2,
constitute an murder, aggravates killing killing does felony but felony. jurisdictions foreclosed aggravate Other have aggravate the other. The the dual use of each murder to Georgia Supreme developed has what it calls the doctrine Court That doc- mutually supporting aggravating circumstances. permit imposed where trine does not two death sentences alleged killing only aggravating for each is factor other. *74 supporting aggravating of circumstances” doctrine “mutually precludes [T]he aggravating of two death sentences where the sole circum- statutory
imposition v. [Putman committed a double murder. stances is that the defendant has State, 251 (1983) (citations omitted) (subse- Ga. 308 S.E.2d 153 605, 614, 145, omitted).] quent history provides “multiple- a death-penalty statute also California’s capital- special aggravate circumstance that can the murder” murder, felony-murder special the circum which differs from 1, Green, supra, 27 609 People stance considered in v. Cal.3d 468, Cal.Rptr. 164 1. P.2d special “multiple murder”
The California court considered 433, Harris, 36, 679 P.2d People in v. 36 Cal. 3d circumstance denied, (1984), 105 782 cert. 469 U.S. S.Ct. Cal.Rptr. 201
511 (1984), 83 L.Ed.2d a double murder situation in which allege use of challenged the each victim two defendant “multiple special pointed murder” circumstances. The court to allege that “there must be inore than one murder this out special at all.” 36 at 679 P.2d at circumstance Cal.3d Cal.Rptr. felony-mur Unlike its treatment of the at 801. circumstance, special did not intimate that der court multiple murders need be shown. Our connection between rule, my opinion, is different. own implicates also The use of the dual murder in this case double-counting exaggerating the problems entailed in or This has weight aggravating of factors. Court evidence approved applying counting” “double evidence previously is, factors, using evidence aggravating the same to estab concerning aggravating more than factor one victim. lish one 524-27, Rose, See, at A .2d e.g., supra, 112 N.J. State v. 174-76, 1058; II, 887. supra, at A .2d Bey Nevertheless, allowing rule such double- even under Court’s counting, evidence establish the use of the same identical aggravating The use the same separate improper. factors murders, facts, aggravating an namely, multiple to establish respect killing, improperly embraces the same of each factor evidence, penalty clearly inflating the risk that the death will imposed arbitrarily. grasped Supreme point clearly by the California
This there stated: in the case. court Court Harris alleging murder results with each count case, In this this circumstance special finding must be more than one circumstances. Since there in a two special alleging allege two circum- all, special circumstance murder this special risk that will inflates stances for double murder improperly death arbitrarily impose penalty. ‡******* allege charging would view, “multiple In our the appropriate papers individual murder counts. from the
murder” circumstance special separate guide objective jury’s consideration This would procedure properly hampering to seek crime without the prosecution’s ability circumstances *75 512 it Harris, v.
what considers to be the [People supra, appropriate punishment. at 201 at Cal.Rptr. 67, 452, 36 Cal.3d 679 P.2d 801.] issue The constitutional that defendant raises somewhat presented double-counting the by different from those situa Rose, Bey in where tions the same evidence was factored Thus, II, penalty-phase into the in Bey twice verdict. v. 123, 887, supra, brought 548 A .2d the N.J. defendant challenge to the constitutional use of the sexual of his assault predicate aggravating victim as the factual for two factors. practice, explained The endorsed the Court but ensure given weight, facts that the are not undue the trial court must jury make the that the aware same facts underlie numerous 176, aggravating factors. Id. at A .2d 887. In State v. Rose, 1058, supra, 112 argued 548 A.2d defendant jury’s that such dual use the same evidence makes unconstitutionally arbitrary. Citing deliberations the discus II, Bey clarifying sion in the Court found that the absence of a require instruction sufficient error to reversal Rose’s Here, death sentence. Id. at 548 A .2d1058. the evidence being dual murders is used twice in determin ing punishment I very for each murder. believe at the least, limiting providing in absence of a instruction careful evidence, explanation using of the concerns entailed the same aggravating the double use of evidence to establish factor c(4)(g) was reversible error. addition, although multiple aggravating were factors al victim,
leged and
each
found for
if one or more factors are
invalid, I do not
can
on
believe
death sentence
endure
Rose,
any remaining
supra,
basis
factors.
112 N.J. at
See
J.,
(Handler,
dissenting).
513 persons aggravating the murders of two where no other cir present, seemingly recognized cumstances were death sen two in that granted by tences situation as excessive. The relief Court was strike the factor as to one victim. Gregg v. See 117, 125-28, (1974) 233 Ga. State, 666-67 S.E.2d omitted). (subsequent However, history if there are other circumstances, murders, aggravating apart from the dual Georgia Supreme “arbitrarily” Court strikes the factor in re spect killing, theoretically one and the other death sentence 355, 367, remains intact. See Waters v. State, 248 Ga. (1981)(“[w]e arbitrarily aggravat S.E.2d eliminate the victims”) ing (subsequent history factor as to of the omit one ted). open I in do not believe that avenue is to use this case invalidity remaining aggravating factor because of the c(4)(c). 513-516, at 912-913. See discussion 585 A.2d infra 420, 427, 2d State, 254 Ga. 330 S.E. Blanks v. Cf. (1985)(despite mutually supporting aggravating the doctrine of circumstances, aggravating “in circum view of the additional here, statutory murder is a stances found the fact that each supporting penalty the death for the other does circumstance sentence”) (subsequent require the reversal of either histo omitted). ry sum, aggra-
In the use of the double murders to sustain the concerning clearly vating c(4)(g) factors of both murders requires of both death sentences. error. It reversal
B.
phase,
represented
penalty
to the start of the
the State
Prior
support
direct evidence in
produce
that it would
no further
alleged. Defense counsel then moved
aggravating
factors
c(4)(c)
respect
of both
aggravating factor
dismissed
to have
that motion and submitted
Kory.
Melva and
The court denied
regarding
c(4)(e)
aggravated assault
found
both.
Kory.
It unani-
depravity
respect
of mind with
Melva and
c(4)(c)
aspect
regarding Melva.
mously rejected
depravity
distinguished aggravated
The trial court
and torture
assault
charge
jury.
aggravated
It
its
defined
assault as
to,
in,
intending
succeeding
causing
physical pain
severe
to,
intending
addition to death.
It defined torture as
in,
succeeding
causing
psychological pain.
severe
Ramseur, supra,
this Court narrowed the acts
c(4)(c).
encompassed by aggravating factor
The Court ex
plained
legislative
the “essence of the
concern is the
mind.”
defendant’s state of
The State
hatred
wife
defendant’s
of his
and his
support
to be rid
desire
of her
the inference that he intended to
pain
inflict
on her.
I believe that those facts are evidential of
kill
are
his motive to
but
insufficient to raise
inference
the
physical suffering
intent to cause
in
severe
addition to death
c(4)(c).
jury
under
Dr.
was
testimony
Gould’s
read to the
out of
in
regard,
description
context
this
as his
concerned defendant’s
wife,
general emotions toward his
not his mental state at the
Rather,
proofs
time of
crimes.
that the
relied
State
on
argued,
picked
up
showed
as the two had
defendant
had
head,
repeatedly
intending
struck
hammer
Melva
her
death; the
successively
quickly.
blows were struck
Given
centrality
c(4)(c),
of the actor’s intent under
there was
jury.
insufficient
factor
evidence
submit that
to the
See
388-89,
Hunt,
(1989)
115 N.J.
I support do not believe there was sufficient evidence to c(4)(c) aggravating respect factors of with to each of these Thus, killings. the two death sentences must be reversed and the State should be re-presenting barred from aggravating this factor. Biegenwald, 13, 51, See State v. 106 N.J. 524 A .2d130 (1987).
V. Defendant also contends that prosecuto- several instances of rial misconduct resulted in prejudice. reversible Two of those occurred in opening statement, the State’s prosecu- which the tor said that although the vengeance” State does not “seek for the murder by defendant, committed the law which “[i]t’s your demands what expect deserve, fellow citizens justice be done for those murders year which occurred one ago today.” prosecutor The jury also asked the to consider defen- mitigation dant’s evidence and “see it for what it’s worth when weighed against Melva, the” harm done Kory, to and the “harm society.” done to explained, “[y]ou He clearly will then see your what responsibility oath, is according your to that ... penalty ultimate paid by must be defendant so that [this] there justice.” added). can indeed (Emphasis be summation, there prosecutorial were other instances of prosecutor “You, misconduct. The stated: gentle- ladies and men, killers, are not as defense you counsel would want believe. You are instruments of the law. our law is to have If any meaning, the wishes and your desires citizens if fellow are to any purpose, you have jurors you must do what promised during jury process.” (Emphasis selection added). prosecutor also society stressed “that our views [multiple killings] horror, with such that it does indeed consider upon that a factor penalty [can], indeed, which the of death as in this case imposed.” (Emphasis added). should[] Ramseur,
This Court declared in
supra,
State v.
at A.2d
that the
cannot be invited
impose
protect
death
society
reasons,
or for other extraneous
be
cause
entreaty
distracts
legitimate
them from their
role—
*79
evaluating
weighing the facts before them.
In
State
Rose,
prosecutor
supra,
concluded that
the
had
Court
from
improperly emphasized the need to deter the defendant
acts,
committing
message
and to send a
of “law
future violent
jury’s
community;
to the
the remarks “focused the
and order”
aggravating and miti-
attention on matters extraneous to the
by
Legislature
to channel the
gating factors established
jury’s
penalty phase
capital
in the
of a
case.”
deliberations
addition,
In
at
I with the Court’s assessment prosecutor case. The focused on extra- cutorial conduct this jury’s sentencing and did in effect dilute the neous matters prosecutor professed that responsibility. Although the aggravating seeking vengeance and that was not relevant, Legislature deemed things are those that the factors satisfy the implied that the death sentence would clearly he vengeance. demand for Rose, jurors that Rose should prosecutor also told the says,” that’s what the law
receive the death sentence “because “against be a vote anything short of death would and that law;” for a verdict here.” law cries out “[t]he [death] Rose, prosecutor here 1058. As in 548 A. 2d expected a death required or strongly implied that the law sentence, argument in terms of the although he couched the society argued indirectly that justice. He also demands of future acts of this defendant protected from the should Fur murders occur. emphasizing it was “harmed” when must do what ther, jurors that the the comments summation *80 518
they
“promised
during
jury
clearly
had
to do
...
selection”
the
imposing
penalty,
refers to
ultimate
death.
acknowledged
commentary
We
Rose that such
could seri
ously
adversely
right
influence the defendant’s
to fairness
penalty phase,
at the
and would
warrant
the
thus
reversal of
524,
death
at
requires
sentence.
Id.
VI.
presented
Defendant
the testimony of numerous friends and
penalty phase.
relatives at
of
the
The first
those witnesses was
Brown,
Anthony
college
Kory’s godfather.
a
friend and
De-
sought
fense
to ask
“any feelings
counsel
Brown if he had
...
about whether
Moore
Leon
should be sentenced to death or
life,”
objection
sentenced to
but the court
an
the
sustained
sidebar,
question.
argued
people
At
defense counsel
that what
thought
who knew
punishment
defendant
the
should be was
mitigating
disagreed.
relevant
evidence. The trial court
Carolina,
280,
2978,
In
North
Woodson v.
428 U.S.
96 S.Ct.
(1976),
49
plurality
Supreme
L.Ed.2d 944
a
Court first
explained
eighth
that the
amendment mandated that the sen-
capital
permitted
tencer in a
case be
to consider “the character
and record of the individual offender and the
of
circumstances
particular
constitutionally indispensable
the
as a
part
offense
process
inflicting
304,
the
the penalty
of death.” Id. at
96
2991,
Indeed,
body determining
S.Ct. at
penal
capital
decisions in
and declared that
Eighth
but
and Fourteenth Amendments
in all
sentencer,
require
considering
case,
rarest kind of
not be
from
capital
precluded
mitigating
of a defendant’s character or record and
any aspect
factor
the circumstances of the offense that
the defendant
as a basis for a
proffers
S.Ct.
sentence less than death.
at
could jury’s frame of reference for the consideration character, of defendant’s the Court found it within the lan- guage mitigating c(5)(h). factor further,
The Court
discussing
generally
went
per
broad
relevance,
ception of
“acknowledged
and also
that in the sen
tencing phase
capital
of a
proceeding
life or death con
—a
reliable,
test—a defendant is entitled to the use of
helpful
all
information.” Id. at
.2dA
308. The Court drew an
analogy
sentencing
to the
judge
noncapital
function of the
cases, and the
evidentiary
relaxation of
rules so that the court
may
“far-ranging
exercise
discretion as to the sources and
types of evidence used to
him
determining
assist
or her in
punishment
kind and extent of
imposed.”
to be
Id. at
(citing
York,
A .2d308
Williams New
U.S.
S.Ct.
(1949)).
short,
In this
the Court has
testimony
determined that the
properly excluded.
It
‘narrowly-de
extend the
“decline[s]
right’
fined
capital
of allocution accorded the
defendant [cita
plead
tion
mercy.”
allow witnesses to
for
Ante at
omitted]
478-480,
strongly disagree.
sense,
In penalty defendant the death should purposes punishment placed not for in be a less advanta geous position than a defendant noncapital convicted of a crime. See, Kiett, (1990) e.g., 2d 582 A. (Handler, J., concurring in part dissenting part). In an ordinary proceeding, impose criminal we almost no limitations on the evidence information that can be furnished to the sentencing judge, including pleas leniency mercy for made on irony behalf defendant. It is a cruel that a defendant facing prospect punishment of the ultimate that can be by society powerless mercy. exacted to ask for sum, barring I opinions In believe that these witnesses’ on put whether the defendant should to death be violates principle mitigating the sentencer consider all evidence range relevant to a defendant’s character. view of the broad evidentiary necessary material to make an individualized concerning punishment, pleas mercy ap- decision such for are propriate. They may helpful assessing even to the credibility I or bias of defendant’s character witnesses. do any potential competing principle harm to the of uni- not see formity.
VII. Court, judgment I concur which reverses I capital-murder convictions and the death sentences. dissent *83 part expressed opinions in this and other for reasons capital-mur- to hold that a the Court continues the extent that and that our statute is constitutional prosecution der under case, require in this do not also rever- grounds, present other sals. WILENTZ, and remandment —Chief Justice
For reversal CLIFFORD, POLLOCK, O’HERN, GARIBALDI and Justices and STEIN—6. part part; concurring
Dissenting —Justice HANDLER—1. A.2d JERSEY, PLAINTIFF-RESPONDENT, OF NEW
STATE OGLESBY, EDWARD WALTER DEFENDANT-APPELLANT. January Argued September 1991. 199 0 Decided