*1
Argued 1998. March 1998 Decided *3 Stephen W. Jones, Kirsch and Michael B. Deputy Assistant (Ivelisse Defenders, Public argued appellant the cause for Torres, Defender, Public attorney). *4 Bartolomey,
Deborah C. Deputy General, Attorney argued the (Peter respondent cause for Vemiero, Attorney General of New Jersey, attorney).
O’HERN, J. capital This is a murder case. There must be a new sentencing because the State withheld evidence favorable to the defense and jury’s material to the determination whether defendant deserved penalty. the death
I A.- pled guilty killing Defendant Leslie Nelson has of two officers, police Investigator McLaughlin John and Officer John Norcross, second-degree aggravated and to the of assault a third officer, Norcross, Detective Richard the brother Officer John 20,1995, killings April Norcross. The and the assault occurred on officers, during a shootout with the who had come to defendant’s home with a search warrant.
The standoff was central to one factors Investigator McLaughlin, defendant’s case. who worked for the Office, County Investigator Camden Prosecutor’s and Carmelo Garcia, Services, Family of Youth the Division went to morning April respond on a defendant’s home 20 to complaint that defendant had fondled her niece and threatened shotgun. Heights her niece with a Haddon Police Detectives accompanied Robert Griffith and Richard Norcross the two inves- tigators. elderly parents in Heights.
Defendant lived with her Haddon parked Defendant’s van was home outside when the door, arrived. When no one answered the the officers had their answered, dispatcher dispatch- call the home. Defendant told the door, open hung up. dispatcher er she would her then again persuaded open by telling called defendant the door investigating problem a her the officers were with van. door, opening cooperate After her defendant was reluctant only through speaking with At first she insisted on the officers. time, agreed to allow Investi- the screen door. After defendant McLaughlin gator McLaughlin home. would not inside the When alone, agreed enter to let Garcia inside as well. The other officers remained outside. *5 inside, McLaughlin
Once spoke and Garcia to defendant for approximately ninety living minutes her room. The conversa- Defendant, generally however, tion was calm. upset became raised her voice when the officers told her that she had been committing accused of a sexual crime. In the course of the discussion the officers learned that defendant had a knife and a shotgun kept and that she shotgun locked in her bedroom closet. Defendant would not allow the officers to search her bedroom, although her mother allowed them search the rest of house, the house. The search of the including part of defen- dant’s bedroom through the officers could partly see defendant’s door, opened bedroom any did not reveal evidence of crime. downstairs, When the Investigator officers went McLaughlin McLaughlin outside, went outside. While was Investigator Garcia very upset. noticed that defendant paced was She from window to window to see what doing were outside. Garcia de- scribed defendant’s stage behavior at this “paranoid.” as McLaughlin returned and asked defendant about her knife. De- point fendant agreed at this to allow the officers to see her bedroom. In the room the officers saw a number of bullets and a four-inch lock-blade knife. house,
As the officers left the plans asked about their for investigation. further Garcia told defendant part that his investigation over, McLaughlin but said that he would have to discuss the matter with superiors. his Defendant told them that she would kill jail. herself if go she had to
Noreross decided to obtain a warrant to search defendant’s bedroom weapons. for Believing that “things might get hairy” they warrant, when served the the officers asked for a “no-knock” provision municipal the warrant. A judge court issued the “no- Upon knock” warrant. consideration, further the officers decided not to use provision. the “no-knock” They believed that relationship that McLaughlin developed with defendant would make go smoothly. the search *6 officers, p.m. day,
At about 2:00 that including same six Norcross, McLaughlin and Detective Richard went to defendant’s McLaughlin home to conduct the search. and Norcross went to door, According while the other officers remained outside. to Norcross, testimony of Detective defendant’s mother answered upstairs McLaughlin the door and called defendant had back, returned. f— Defendant called ‘What the does he want?” tone,” McLaughlin, “soothing in a told defendant that he needed to questions. McLaughlin attempted ask some more to coax defen- stairs, speaking stairway dant down the to her from the foot of the top. as if defendant stood at the Defendant asked the officers had explained a McLaughlin they warrant for her. did not have warrant, they an arrest but did have a warrant to search her begin bedroom. Just then Detective Norcross heard defendant run, McLaughlin up and he saw for his reach firearm and run McLaughlin top stairs after defendant. When reached the bedroom, stairs and turned toward a defendant’s defendant fired fell, McLaughlin fatally rifle at him. wounded. up Investigator
Detective Norcross continued stairs after him, McLaughlin top, fell. When he reached the defendant shot chest, hand, him hitting leg. in the arm and Norcross and slid fell slid, back down As the stairs. he defendant leaned out over the railing leg. and shot Norcross once more She then ran to top steps began and to follow Norcross down. Defen- stop, stepped dant’s mother called to her to and she between struggled defendant and the detective. Norcross to his and feet through left the house a door. side began firing Defendant went to a second-floor window and gunfire the officers outside. Ten or fifteen minutes after the Norcross, began, fatally shot Officer John who was standing across the street from defendant’s home. Heights dispatcher
The Haddon called defendant’s home soon dispatcher after John Norcross was shot. Defendant told the searching taking she did not want officers her room or her jail. long negotiation by telephone, After a conducted defen- eventually dant surrendered.
B. County Jury A Camden Grand indicted defendant on two counts knowing purposeful conduct, eight murder her own murder, first-degree attempted counts of third-degree unlawful possession firearm, of an assault second-degree possession purpose. firearm for an unlawful pled guilty Defendant capital two murder second-degree aggravated counts and to as- sault of Detective Richard Norcross and was convicted of those charges plea. on the basis of her trial, sentencing
At the following aggra- the State asserted the *7 vating factors in connection with the Investigator murder of 1) McLaughlin: grave the murders created a risk of death to (the 2) factor); “grave Detective Norcross risk” each murder was purpose detection, committed for the escaping apprehension, of trial, punishment, or possession confinement for the unlawful of a (the 3) factor); “escape firearm detection” each murder was engaged committed while defendant was in the murder of the (the 4) factor); other officer “other murder” and each murder occurred engaged while the officers performance were in the of (the factor). “public their official duties servant” For the murder Norcross, prosecution John only escape submitted detection, murder, public other and servant factors. It did not grave submit the risk factor.
Defendant countered with mitigating three factors for both 1) murders: she was “under the influence of extreme mental or emotional disturbance prose- insufficient to constitute a defense to (the 2) cution” factor); “emotional disturbance” “capacity her appreciate wrongfulness of her conduct or to conform her conduct requirements significantly law was impaired as defect, the result of a mental disease or but degree not to a (the sufficient to a prosecution” constitute defense to “impaired factor); 3) capacity” “any and factor jury might other that the find prospects relevant to her of rehabilitation or to the circumstances offenses, including [her] contention that the ... officers [who came to her inadequate training, preparation, house] had and support from County the Camden Prosecutor’s Office and from Heights the Haddon Department Police dealing for with a dis- person, (the particularly turbed possess one known to a firearm” factor). “catch-all”
Defendant’s evidence centered on the mental illness she years suffered as a result painful doubt about her sexual identity. began Defendant life as a male named In Glen Nelson. 1986, defendant consulted a Colorado doctor about sexual reas- signment. The doctor begin sex-change pro- advised him to by taking estrogen cess progesterone. and Following a nineteen- day commitment to hospital a mental defendant was diagnosed depression with severe and with schizoid and antisocial tendencies. July 1989,
In defendant underwent psychological testing to good determine if he would abe candidate for sex-change surgery. The test indicated that may have suffered from a depressive disorder, disorder, dysthymic major a affect disorder paranoia. or approved He was not sex-change operation, for the began but taking estrogen he progesterone. Defendant had augmentation surgery May breast changed his name to Leslie, began to live September and dress as a woman. In 1991, one of defendant’s having doctors described defendant as psychological problems.” Still, “severe ap- defendant’s doctors *8 proved reassignment, part the sexual in they because feared defendant would commit suicide if surgery. he did not have the operation May Defendant had the in 1992. sex-change operation,
After depression the persist- defendant’s developed ed. She a fixation or Browning transference on a handgun bought, along that she had with a semi-automatic assault rifle, in early worsened, depression 1989. As defendant’s her bedroom, guns deepened. obsession with Her where she would spend polishing guns, hours significance. the took on a A surreal deteriorating psychiatrist that her mental condi- testified
defense an reaction to the threat tion caused abnormal entering her bedroom.
C. Norcross, jury the respect to the murder of Officer John With detection,” murder,” unanimously “escape “other found the rejected unanimously “public aggravating factors. It servant” “impaired capacity” mitigating fac- disturbance” and “emotional tors, reject three to the “catch-all” factor. and it voted nine to jurors declaring, beyond in a reasonable The were unanimous factors, doubt, aggrava- aggravating the collection of and each isolation, ting outweighed mitigating in factors. factor McLaughlin, Investigator In of connection with the murder unanimously proffered aggravating found three of the four factor, factor, “escape factors: detection” the “other murder” jurors Only “public and the servant” factor. ten of the twelve “grave only mitigating factor the found the risk” factor. The finding was unanimous in was the “emotional disturbance” factor. jurors rejecting “impaired capacity” in voted ten to two rejecting eight factor and to four in the “catch-all” factor. The jurors unanimously agree aggravating could not factors beyond outweighed factors a reasonable doubt. The trial court sentenced defendant to death for murder prison thirty years John Norcross and to life in with Officer parole ineligibility Investigator McLaughlin. for the murder to a The court further sentenced defendant consecutive term years prison five-year parole in for ten with a bar the second- degree aggravated assault of Detective Richard Norcross. trial, Norcross,
After the it was revealed that Detective Richard injured McLaughlin up who had followed the stairs and who was municipal siege, against county in the had filed a civil suit alleged Borough authorities. His tort claim of Haddon Heights County and the Camden Prosecutor’s Office acted “palpably “failing provide proper unreasonable” manner
497 training safety and instruction to ensure the of the Haddon Heights Police who Officers” served the search warrant on defen- dant. Norcross claimed that the officers’ conduct had caused injure complaint Leslie Nelson react as she did and him. The County 8, 1997, May served on the Prosecutor’s Office on day ten-day which was the seventh sentencing phase. Two years 14, 1995, serving complaint, July before on Detective office, Norcross sent of his prosecutor’s notice claims to the Act, N.J.S.A 59:8-3 to -11. The accordance with the Tort Claims alleged detective’s tort claims “improper hiring, screening, notice training supervision.” prosecutor’s The office did disclose this information to the defendant or defense counsel. Defendant called attention to the State’s nondisclosure of the Norcross complaint in post-sentencing motion for a new trial. trial The 22,1997. July court denied that motion on 2:2-l(a). appeals her death sentence under Rule Defendant now convictions, challenged She has not which were based on her guilty pleas.
II every In prosecution criminal case the must disclose to the defendant all guilt evidence that is material either to or to punishment. Brady Maryland, v. 83, 87, 1194, 373 U.S. 83 S.Ct. L. (1963). 10 Ed.2d 218 There are of a three elements Brady accused; violation. The evidence must be favorable to the suppressed by prosecution; it must be and it must be material. Illinois, Moore v. 786, 794-95, 408 U.S. L. S.Ct. 92 (1972). Ed.2d complaint
Evidence of the Norcross would have been favor penalty phase. able to allegation law personnel inadequately enforcement had been trained lent direct support Thus, to defendant’s catch-all factor. first Brady element is satisfied. *10 sup prosecution the should be understood to have
Whether pressed complaint, satisfying the second evidence of the Norcross Brady element, depends prosecution actually or on whether the penalty phase. constructively possessed during that evidence the Brady applies only to information of which The disclosure rule the See, e.g., Calley v. actually constructively prosecution is or aware. Cir.1975) (en (5th Callaway, 519 F.2d 184, banc), cert. denied 228 Calley Hoffmann, 911, 1505, sub nom. v. 47 L. U.S. S.Ct. 425 96 (1976). accept prosecutor that the trial himself did Ed.2d 760 We personal knowledge complaint. have the Norcross The question knowledge complaint imputed is whether the should be prosecution. Kyles Whitley, L. 419, 1555, v. 514 U.S. 115 S.Ct.
In 131 Ed.2d (1995), reversed the denial of habeas Supreme 490 the Court corpus capital relief to a Louisiana defendant convicted of murder. prosecution The in that case failed to disclose several statements that, Court, police according had taken “would have markedly prosecution resulted in a for weaker case and a 441, Id. at markedly stronger one for the defense.” 115 S.Ct. at 131 L. Ed. 2d at 510. The trial 1569, prosecutor was not aware of trial, prior to lack of those statements but the actual awareness Brady obligations. did not relieve the of its State Justice Souter prosecutor duty reasoned for the individual Court “the has a any acting to learn of favorable known to evidence on the others behalf, Id. at government’s 437, 115 S.Ct. including police.” 1567, 131 L. Ed.2d at 508. He defined the contours of that duty: investigators [N]o one doubts that sometimes fail to inform a police prosecutor all know. But neither is there serious doubt they any “procedures regulations [the can be established to burden and insure carry prosecutor’s] communication of all relevant information on each case to who deals every lawyer discharge govern-
with it.”
...
has the
Since, then,
means
prosecutor
argument
excusing
ment’s
if he
for
from
Brady responsibility
will, any
prosecutor
disclosing what he does not
to know about boils down to a
to substitute
happen
plea
for the
even for the
themselves,
courts
as the final
prosecutor,
government’s obligation
arbiters of the
to ensure fair trials.
(quoting Giglio
[Id. at
The Tenth Circuit has stated that “the for purposes encompasses only prosecutor handling the individual case, ..., prosecutor’s the but also extends to the entire as office personnel law well as enforcement and other arms of the state investigative aspects particular in involved of a criminal venture.” Corrections, 801, Secretary Dep’t Smith v. N.M. 50 F.3d 824 (citation omitted), Mondragon and footnote cert. denied sub nom. (1995). Smith, 905, 272, v. 516 U.S. 116 L. Ed.2d S.Ct. 133 193 case, by In complaint this was filed one of the “law enforce- personnel” “par- in investigation ment involved of defendant’s venture,” brought against “prosecu- ticular criminal it and was Smith, fact, supra, tor’s entire office.” at In 50 F.3d 824. after 1995, receiving July Richard Noreross’ tort claim in notice Counsel, County County Prosecutor in a Camden notified letter 7, 1995, August dated the Prosecutor would discuss the complaint prosecutor handling with the assistant trial. defendant’s appears place. Kyles It that discussion never took Under either
500 complaint to Giglio, impute awareness of the Norcross
or we must suppressed for prosecutor and hold that the evidence was the trial Brady purposes. Brady satis materiality element of the rule is also Brady purposes for if there evidence is material
fied. Undisclosed a result would have probability” a different is “reasonable disclosed. States v. obtained had the evidence been United been 3375, 3383, L. Bagley, 105 S.Ct. 87 Ed.2d 473 U.S. (1985). probability probability’ “A is a sufficient 494 ‘reasonable pur in For these to undermine confidence the outcome.” Ibid. may poses, trial refer to either the determi the “outcome” of the Brady, guilt imposition punishment. supra, nation of or the 1196-97, L. at For an at at Ed.2d 218. U.S. S.Ct. appellant, materiality standard is not difficult to achieve. “[A] materiality require pre showing of does not demonstration ponderance suppressed evidence would have that disclosure ultimately acquittal.” Kyles v. Whit resulted the defendant’s 1565, 131 434, 115 ley, at L. at 506. supra, 514 U.S. at S.Ct. Ed.2d Rather, question undisclosed is whether the absence trial, a fair “understood as a trial evidence the defendant received resulting worthy in a of confidence.” Id. at 115 S.Ct. verdict 1566, 131 L. Ed.2d at 506. evidence, suppression disregard In order to of favorable we would have to be confident would have chosen imprisonment penalty death over a term of had the State made *12 complaint. It to defendant aware of Norcross’ is not for us assess complaint judge thereby or the the merits of Richard Norcross’ police. allegations conduct of It suffices to that the observe jury’s perspective profoundly would have altered the of the case. key Norcross was the State’s witness to defendant’s conduct during him the standoff. He testified about her vicious assault on Investigator McLaughlin. jury as well as the murder of Had the witness, of the been aware that this crucial the brother of one officers, police agreed inadequate police dead with defendant reaction, training sparked it had defendant’s violent is least juror jurors reasonably probable that an additional or would have mitigating found the existence of one or more of defendant’s only prosecution dispute the of the factors. Not did the existence mitigating concerning training police inadequate factor of the officers, daring question it for excoriated the (Defense officers. counsel referred to deceased conduct prosecutor’s point “pinnacle” discussion on this as the of his summation.) reasonably probable jury It would is also factor(s) given greater weight have thus substan- beyond not convinced a reasonable tiated would have been aggravating outweighed mitigat- doubt that the circumstances Brady ing requires ones. The violation a retrial of defendant’s sentence. complaint requires
Because the non-disclosure of the Norcross trial, only briefly sentencing us to order a new we address in other issues the case.
Ill jury disregard, capital-sentencing instruct for Did the trial court erroneously the fact could be sentenced to years’ that defendant non-capitally sixty purposes, for the two murders? imprisonment accurately Defendant asserts that the court did not inform the jury legitimately consequence that it could consider the cumulative of two non-death verdicts. The court told the that for each returned, that it defendant would be sentenced non-death verdict spend imprisonment thirty years to a term of to life and would thirty years prison. court added that if it were at least The imposing charges, on both murder there was a reason- sentence consecutively, able likelihood that the sentences would run creat- However, ing prison sixty years. court a minimum term of admonished the to consider in its deliberations consecutively. likelihood that the sentences would run consequences jury’s decision whether to vote favor penalty explained as follows: the death were *13 If the answer is the defendant shall be sentenced to death. If the yes, answer is jury no or the is unable to reach a unanimous conclusion after due I deliberation, shall sentence the to a of defendant term of between and imprisonment thirty years being life which the defendant shall serve at least before considered thirty years for If sentences are to be parole. me, the reasonable separate imposed by likelihood is will run consecutive to one another so they the defendant will have to being serve at least before considered for sixty years parole____ throughout Please note that of the verdict sheet and otherwise explanation during charge the course of the at the I have instructed request parties you told that if I do not do not you the result of impose you impose your —if —if get decision is the defendant does not the death not do penalty, you impose death and the decision is one of penalty incarceration, the reasonable likelihood is give that I will or consecutive which impose sentences, mean[s] that the defendant being eligible would have to serve before considered for sixty years Now, parole. aggravating mitigating that’s an remember, not it’s not a factor, [I] went factor, aggravating gone through mitigating all over I’ve factors, all the factors. shall not Therefore, you likelihood, consider that likelihood as a basis your for decision to the death or a sentence impose because penalty imprisonment of aggravating it’s not an factor and simply put it’s not a factor, simply put bring Ibut do it to attention because should be aware of all your you the potential bring decision. That’s I it to consequences your attention. why your added.] [Emphasis upon The defendant general proposition relies in codified 2C:ll-3f, “[p]rior N.J.S.A. jury’s sentencing delibera- tions, the trial court shall jury inform the of the sentences which may imposed pursuant be to subsection b. of this section on the if the defendant is sentenced to death.” argument
Defendant’s is that consequence of a non-death verdict in this case would have thirty years been two sentences of to life that probably consecutively. Therefore, would run should have been weigh against asked to death the likelihood that a non-death verdict on both murder counts would result in a prison sentence of life in possibility parole without the sixty for (Because years. thirty-seven years age defendant was at the crime, time of the effectively this meant that she would die prison.) Instead weigh was told to against prison death life, was, thirty years effect, term of disregard told to likelihood that the consecutively. sentences would run penalty-phase jury case,
A
capital
in a
prior to the start of its
deliberations, must be informed of
sentencing consequences
*14
Ramseur,
In State v.
106 N.J.
its decision. N.J.S.A. 2C:ll-3f.
123,
(1987),
stated,
jury
jury
instructing
pending
its life or
sentences on
but
to base
request,
aggravating
factors
death decision
on the
presented by
only
evidence.
[Ibid.]
(1993) (Martini
Martini,
176, 619A.2d 1208
In State v.
131 N.J.
—
denied,
I),
-,
ness of a death sentence on the murder count.
[Ibid]
Loftin,
(1996),
State v.
146 N.J.
ing jury multiple the on occasions that likely the non-death for sentences the prison murder would be life in sixty-year with a period parole Then, ineligibility. analogous in a manner to the limiting III, Bey instructions of Martini I and the court instructed jury the to consider that your likelihood as a basis “for impose decision to penalty.” the death summation, In his urged defense counsel had the most appropriate prison. sentence view, was life in In the defense the court’s instruction undercut the defense’s summation and told the jurors ignore reality jail that defendant would have died in being before even parole. considered for The defense further asserts that the court’s instruction wrongly conveyed jury that its choice was between parole eligibility death and thirty in years. jury simply was not disregard instructed to sixty years parole Instead, ineligibility. jury in instructed effect to treat period the case as if parole ineligibility would thirty years. be dis- argument but logic of the defendant’s understand the
We jury knew inescapable to us that reality. its It is agree with prison a life in without choosing death and that it was between sixty clearly referred to sheet possibility parole. The verdict likely to the court was non-death sentence years as the impose. time, clarify meaning of our should
At the same we death, it should jury choosing between life and rulings. is When it not. The treating ease as one that is into not be misled may it choosing life and death told that in between should not be likely to forty-year-old defendant is that a not consider the fact an if is life. Such sixty years prison its verdict spend the next imper holding and with our Ramsewr would conflict instruction sentencing range full of its missibly “hide from the Ramseur, A.2d 188. supra, options.” 106 N.J. jurors mean eases, explain to what we should In future courts than possible other length of the sentences say that the when we concerning the jury’s determination not influence the death should count. on a murder Some- of a death sentence appropriateness (as Judges’ by the Trial Committee refined thing along these lines Causes) suffice: Capital would on of the appropri- I tell determination your I intend to when convey you
What I that may be influenced the sentences sentence should not ateness of a death not an that death is event determine other or convictions, you on impose is not that a is defendant, capital for this simply punishment appropriate *16 longer in than a confinement prison he or she face of life because may more worthy on the circum- should only worthiness for life depend another. A defendant’s aggravating been factors that have and the offense and the stances of sentences so only I informed of the potential non-capital have you presented. of the effect of decision. your be informed fully you may IV rights alluding to defen- constitutional violate defendant’s Did the prosecution a revolution”? Amendment and “bloody dant’s views of the Second her due prosecutor violated contends that the Defendant by using of the Second speech rights her views process and free suggest “bloody revolution” Amendment pursued personal defendant had a goal killing police officers. evidence, Because presented, as probative was not any- disputed sentencing phase, issue in the agree. we penalty
In phase, defendant called Doctor Kenneth Weiss as expert an in psychiatry. forensic Doctor Weiss had examined defendant on several occasions and had evaluated her mental During cross-examination, condition. the State’s following exchange place: took just on October Q. Doctor, 10th, Leslie Nelson told and I I’m you, quote, guns
a who loves person thinks the Second Amendment is sacrosanct, correct? A. Yes. She also in Q. told that same you and this is interview, another quote,
Founding might Fathers had in mind that there be another revolution. bloody A Yes. She said that to me. And she talked to a Q. number of times you about the Constitution and her love guns, correct? guns A. Oh, she talked about her certainly love of on a number of occasions. I was more in interested, her course, attachment to them than I am about her thoughts on the Constitution. Founding if Q. Well, Doctor, Fathers as Ms. Nelson it, her interpreted right, going and if there were to be another revolution and if bloody Leslie Nelson against were to be a focusing whom would revolutionary, she be her violence? A I imagination don’t go know, [the Mr. really Lynch prosecutor]. didn’t My that far. if against government, Q. Well, against you’re revolt, sir, in revolt you’re correct? authorities, A. I that would be so. suppose just don’t talking Q. Well, you that, know if suppose you that, sir, you’re about talking against government, revolution, about revolution you’re correct, isn’t that what revolution means? right.
A. I believe that’s government So the govern- Q. Okay. persons the interests of represent among ment right? other are isn’t that people police officers; A. That figure could be representing as an interpreted certainly authority structure of society. pursued The State this theme in closing argument. its Down- playing relating the evidence life, to defendant’s failures in prosecutor said, ‘Well, here, here on April, 1995, the twentieth of something she found she could be successful at. She found success clearly because she wanted to kill officers and she *17 successful and did it. She was successful and she did it. She was them.” killed merely country for in this may punished
No one be associating others with political or for particular beliefs espousing Const, I and Evi amends. XIV. U.S. who share those beliefs. is beliefs or associations relating criminal defendant’s to a dence issues or witness to material at trial if it is relevant admissible 52-53, Abel, 45, 105 S.Ct. 469 U.S. credibility; v. United States (1984); 450, of those 469, but if evidence 465, 457-58 83 L. Ed.2d any proposition of a material more not make the truth beliefs does is unconstitutional. of that evidence probable, the admission or less 168, Delaware, 159, 112 S.Ct. 503 U.S. Dawson v. (1992). 309, 319
L. Ed.2d presented in Dawson. to those of this case are similar The facts membership in There, of a defendant’s of evidence the submission speech and fair free was held to violate Aryan Brotherhood first-degree David Dawson rights. Ibid. A convicted trial penalty. murder, death eligible him for Delaware’s which made evidence sought to introduce penalty phase, the State During the The membership Aryan in the Brotherhood. relating to Dawson’s refers to a white Aryan Brotherhood parties stipulated that “[t]he in re- began in the 1960s California prison gang that racist calling Separate gangs gangs of racial minorities. sponse to other pris- many state now exist Aryan Brotherhood themselves the 1096, 162, 117 L. at at 112 S.Ct. including Delaware.” Id. ons at 315. Ed.2d ways in evidence acknowledged which Supreme Court and thus gang might have relevant prison been
relating to the concerning stipulated facts it concluded that permissible, but Dawson’s any to have relevance gang were too narrow intolerance of racial noted that evidence sentencing. The Court when relevant advocacy may be considered and subversive 1097, 117 L. Ed.2d at 316 Id. at 112 S.Ct. disputed issues. Florida, 77 L. 103 S.Ct. Barclay 463 U.S. (citing v. (1983)). Aryan Brotherhood member- It recalled Ed.2d 1134 *18 ship was a impeach held admissible to witness when it was shown gang the for that members of take oaths to lie other members. 164, Abel, 1097, at 112 at 117 L. at (citing Id. S.Ct. Ed .2d 317 (1984)). 45, 465, supra, 469 105 L. Ed.2d U.S. S.Ct. 83 450 However, stipulation the Court examined Dawson’s and realized proven only Aryan that that Delaware had Brotherhood 1960s, originated gang espoused in in the that California that beliefs, gang white racist and that is a prisons there in Delaware’s 165, to that refers itself the same name. Id. at 112 at S.Ct. 1097, 117L. Ed.2d at 317. Court,
According surrounding evidence gang was First, sentencing irrelevant Dawson’s for three reasons. stipulation did state gang not that Delaware’s version of is a were, organization. racist And if it even the Court that reasoned convicted, murder of which Dawson unlike in was the murder Barclay, racially his not motivated because Dawson and 166, 112 1098, 117 victim were of the at same race. Id. S.Ct. at L. Ed.2 d at 317-18.
Second,
Aryan
Delaware did not
establish “that
Brother
acts,
any
hood had committed
unlawful or violent
or
even
had
such
endorsed
acts.” Had
been a
gang
Dawson
member of a
that
killing
group,”
reasoned,
endorsed the
of an “identifiable
the Court
membership “might
that
jury’s
be relevant
to a
inquiry into
dangerous
whether the defendant will be
in the future.” Id. at
166,
1098,
Third,
acknowledged
prosecutors
the Dauison Court
must
leeway
capital
have the
rebut
mitigating
a
defendant’s
evidence.
167,
1098-99, 117
at
Id.
at
opinion
S.Ct.
L.
at 318.
Ed.2d
suggested
capital
further
positive
once a
defendant offers
may
“bad”
mitigation,
offer whatever
character evidence
State
has,
specifically
if it
contradict
it
even
does
character evidence
168-69,
Id. at
112 S.Ct.
evidence.
defendant’s
concerning
L.
at 319. But Delaware’s evidence
Ed.2d
“principle
gang did not even
broad
prison
serve
presented ...
Aryan
“the
evidence
rebuttal” because
Brotherhood
in its
relevant
character evidence
not] be viewed as
‘bad’
[could
at 319.
V Other issues raised. argues The portion that a of the court’s instruc may conveyed jury tion have finding that a aggravating no mitigating factors but required factors penalty the death automatically be imposed. judge “[a] instructed that conse quence jury finding presence aggrava one or more ting finding factors and the a mitigating existence of factor all would mean that agree appro members of priate punishment is death.” agree that improperly
We
the instruction
danger
creates the
jury, having
that a
found one or
aggravating
mitigat
more
no
but
*20
factors,
ing
impose
penalty
would
the death
carefully
without
analyzing
unanimously
and
agreeing upon
appropriateness
the
of
However,
death.
placement
the instruction’s
in the context of the
court’s
danger
entire instruction lessened that
in
ease.
this
Im
thereafter,
mediately
explained
the court
to
jury
the
that “a death
verdict
product again
cannot be the
application
of mechanical
Rather,
a statute.
such a
only
verdict can result
if it is [a]
your
judgment
reflection
fitting
death is the
appropri
and
punishment
you
ate
considering.”
the case
are
areWe
satisfied
instruction,
that this
which we
presume
jury
must
to
the
have
followed,
Manley,
State v.
54
(1969),
N.J.
Defendant
pohce-training
sheet the
single
on the verdict
dated into a
factor
mitigating
We have
catch-all
factors.
circumstance
other
extensively in
v.
general
[Ambrose]
issue
State
the
discussed
(1998)
Harris,
185-91,
v.
The trial court did an warrant at had to obtain arrest police probable cause In of the search warrant. attempted of the execution time improperly had acted support her contention confrontation, expert an who during April 20 defendant called weapons in illegal the officers’ awareness testified that justified of an arrest have the issuance defendant’s bedroom would simply if the had theory was that officers warrant. Defendant’s warrant use the search and not threatened to arrested her *21 personal space, shootings invade her not have would occurred. jury charge, objected At the end of defense counsel to the lack an confirming probable of instruction that the officers have did support cause an arrest warrant. The court stated it might request timely, have done so had the been more but it give to call requested declined back to them the instruc- not tion. We would reverse based on this exercise discretion. retrial, request may At a be renewed. require
International law does not invalidation of New Jersey’s penalty. death The United States of America not has any rights subscribed to international human accord that has penalty. invalidated the death Spiro, See Peter J. The States and (1997) Rights, International Human 66 Fordham L.Rev. 567 (observing that the United States has to “near acceded universally-adopted rights conventions”); human international see 1995(3) 391(CC) (the Makwanyane, also State v. SA South African public discussing Constitutional Court international law relevant constitutionality to the penalty). the death record, For completeness preserve we note and defen challenge dant’s proportionality of her death sentence. respect challenge With defendant’s constitutionality statute, penalty Ramseur, the death we adhere to our decision 190, supra, 188, 106 N.J. at rejected A.2d we which arguments that Eighth the statute violated Amendment of the 1, United paragraph States. Constitution and Article 12 of the New Jersey Constitution.
VI up, To sum shocking puts “[a] crime law to its severest test. triumphs impulses The law by over natural such aroused a crime only guilt if regard be ascertained indispensable due for those safeguards which our civilization has evolved for ascertainment States, guilt.” v. Fisher United 328 U.S. 66 S.Ct. (1945) J., (Frankfurter, 90 L. Ed. dissenting). disregarded safeguard requires State prosecution
513 an accused all evidence favorable defense. to disclose to jury’s the That error undermines verdict. acknowledge this constitutional dissenting that
Our members violated, they find the violation was not safeguard but Try punishment. we determining to as material defendant’s regard Brady as immaterial to might, we cannot the violation punishment. the central in determining One of issues defendant’s issue, trial, if not the was whether defendant’s penalty the central police avoided had the officers reaction could have been violent investigation differently. suppressed evidence The handled their mitigating theory. Had source directly defendant’s the supported case, in the not been star witness of evidence the State’s for prosecutor’s summation not attacked the defendant had the question police, might to daring to the of the we be able conduct materiality suppressed evi- agree question on of of the dence. however, opening remarks of the proceeded,
As the case closing summation Nelson’s ex- prosecutor his derided Leslie in “Monday in procedures having engaged pert police for witness on prosecutor quarterbacking” morning of the officers’ conduct. expert conduct: said of defense who criticized what to be his when think about [W]hen you think about you testimony, purports mitigating if think about this case, expression, you factor in this about the police, just run it in context but let it You have heard another before, maybe will. may through of sit in the cool of the Beware of beware who mind. your people people, evening evening cool on what better men do the heat and reflect of the McLaughlin, had Jack the nerve That man had the nerve to criticize day. gentlemen. right, It’s That’s not fair not ladies and criticize those officers? reject right. urge his testimony. I that portion it’s you respectfully jobs. did their served and They they served They Those officers honorably. reject mitigating urge hand. factor out I you protected. added.] [Emphasis evening” “cool of the Officer Had the known that in the officers,” those had come to “criticize Richard Norcross also might have much jury’s of that factor been perception different. ease, posture
In this we cannot our on turn backs obligation. society protect constitutional “Of course must itself. surely self-protection society But it is not for to take life without the most careful own safeguards against observance its Fisher, punishment.” capital supra, misuse of 328 U.S. at J., (Frankfurter, S.Ct. at 90 L. dissenting). Ed. The sentence of death is vacated. remand We the matter to the sentencing Law Division for a retrial on John Norcross *23 murder in opinion. accordance with this J., HANDLER, concurring dissenting. and 20,1995, defendant, April Nelson, On Leslie shot and two killed police severely officers and police wounded another as the at- tempted guns to serve and a kept execute search warrant for she apartment. in her The two officers who died were Investigator McLaughlin John and Officer John Norcross. Detective Richard Norcross, brother, injured. severely John’s was The Camden County Jury Grand indicted for knowing- two counts of or-purposeful conduct, murder her eight own counts of first- degree murder, attempted third-degree possession unlawful of an firearm, second-degree assault and possession of a firearm an for unlawful purpose. County The Camden Prosecutor’s Office of following served notice aggravating four factors for each (1) capital murder offense: grave murders a created risk of (2) Norcross, death to Detective each murder was for committed purpose detection, trial, escaping apprehension, punishment, (3) or possession firearm, confinement for the unlawful of a each murder was committed while engaged defendant was in the mur- (4) officer, der the other and each murder occurred while engaged officers performance were in the of their official duties. guilt Defendant did not contest her for pled the murders. She guilty to two counts of murder for the of Investigator murders McLaughlin Norcross, and pled Officer guilty and she lesser included count of second degree aggravated assault of only Detective Norcross. The issue that was tried was whether should she be executed for her crimes. impose to jury empaneled
A to consider whether the death consider three penalty, and defendant asked to (1) or factors: was under influence extreme mental she prose- insufficient constitute a defense to emotional disturbance to (2) cution, appreciate wrongfulness of her capacity her requirements or to her conduct to the of law was conduct conform defect, or significantly impaired as the result of a mental disease prosecution, defense to degree not to a sufficient constitute but (3) primary factor. The focus the catch-all and the catch-all inadequately were trained serve a factor was that the person weapons possession in the of a with her search warrant for that, psychological as a degree of emotional and disturbances and result, needlessly dangerously threatening their action was and confrontational, thereby averting than provoking rather and violent reaction. arguments days of from hearing eight
After evidence counsel, to death for the voted to sentence defendant Norcross, they unanimously agree murder of but could Officer Investigator McLaughlin. the murder of on the sentence for II, III, opinion respective in Part of its The Court rules IV *24 requires rever ly, that the evidence non-disclosure 288, sal, 501, jury permit to to ante at 715 A.2d the failure practical consequences of its decision was error but consider harmless, 290, prosecutor’s A.2d cross- ante at and psychiatric expert about defendant’s of a defense examination error, does not address whether political beliefs was but Court error, ante at A.2d 293. it reversible was agree join opinion, and I with the I Part II of the Court’s Nevertheless, findings of in Parts III the Court error and IV. errors, high- significant, each substantial and that these concludes death a of defendant’s ly prejudicial, do not warrant reversal I from Parts III and IV disagree, and therefore dissent sentence. opinion. of the Court’s
I By killing duty, two officers in the line of defendant committed to our one worst crimes known law. The guilty did not have to determine whether defendant was of these or eligible crimes whether these crimes rendered for penalty. the death Defendant conceded both. to sentence, only decide defendant’s and it weighing had task of aggravating against any mitigating circumstances of the crime mental, psychological circumstances. Defendant’s and emotional mitigation. condition were central to claims for her Defendant depression, failed anxiety, was a transsexual who suffered from paranoid guns, particular and disorders. in Her a 9 millimeter Browning handgun, primary had become her source of comfort. 20,1995, period leading up April In to she would retreat to her day room four to six times a calm going through and herself a ritual in which sit handgun. she would and caress the psychological history paint pathetic picture. medical and a
Her basis, psychological Without sufficient in defendant under- reassignment surgery removing genitalia went sexual her male — constructing genitalia place attempt female its an —in problems being redress her social with an outcast and a loner. people undergo most surgery Unlike who as a remedial response transexuality, clinically defendant did not have the accepted conditions transsexualism. did not She harbor the persistent, truly unshakeable sense that she was a female even though physically she was a male —that she was woman “trapped” body. in a man’s Defendant did not want to become a physical woman gender psycho- order to reconcile her with her Rather, logical gender. merely she wanted to look like a woman so she could attract the attention men. She believed she could adjustment by attain that level or form of “becoming” a woman. plan However, Her had been to work an as exotic dancer. she unpopular patrons was uncoordinated and with the bar and own- ers, problems by her attempt becoming solve her a sex *25 object Nevertheless, was unsuccessful. to she continued think answer; psychologist told one surgery she plastic was bigger had breasts. if she problems could be solved that her depression and her deepened her as a woman failure Defendant’s in which The rituals withdrawn. of isolation. She became sense caressing her listening and to music sit on her bed she would only refuge for solace. handgun her were re- explained her violent psychological condition Defendant’s Her search warrant. police attempts to serve the sponse to the thinking her to feel threatened paranoid caused anxiety and acute away to take her into her bedroom police tried to come when the defendant, psychological de- her bizarre picture of gun. That believed, disturbance, if would profound and emotional rangement devastating inference powerful counter-balance as a serve calculated, cold, part of a the officers as that defendant shot defense’s prosecutor undermined the process. The premeditated by intro- mental health on defendant’s mitigation evidence based by revolutionary prompted ducing that defendant evidence keep need to irrational and delusional rather than motives intact. her world however, case, was her mitigation linchpin of defendant’s
The to handle situa- inadequately trained police that the were claim people who emotionally-disturbed involving mentally-ill and tions jury to consider asked the dangerous. The defense are armed and police if the had known avoided could have been that the situation controlling in the situation. risks involved to minimize the how for even and attacked the defense derogated prosecutor character- negligently. acted He that the had suggesting predato- as a zealous as and defendant ized the officers brave ry killer. He said: evening cool of the and reflect in the cool of the who sit
Beware people man had the nerve evening That men do the heat day. on what better right, McLaughlin, officers? That’s not to criticize those had to nerve criticize Jack right. urge gentlemen. I you respectfully not fair and it’s not It’s ladies did reject They served honorably. Those officers of his testimony. portion reject urge factor jobs. I served and you their They protected. out of hand. *26 518 defense, prosecutor
Unbeknownst to the at time the the stressing making very arguments those the and that to the criticism, beyond witness, police were the chief State’s Detective injuries blaming Norcross had filed a lawsuit his at of the hands department’s on provide adequate defendant the failure to supervision training.
II I holding concur with the the Court’s failure to disclose Detective Norcross’s lawsuit was a violation of the substantial due process requirements Brady 83, 87, Maryland, v. 373 U.S. 83 1194, (1963). 1196, 215, 501, Ed.2d S.Ct. 10 L. 218 Ante at 715 A .2d288. accept prosecutor’s as
We true assertion that he had no personal knowledge of Detective Norcross’s lawsuit. That cannot withholding serve as an for excuse vital evidence from a defen prosecutor’s dant. The office consequences cannot avoid the of its knowledge by obligation evidence disclaiming material its lawyers its Giglio inform of all relevant matters v. case. States, 150, 154, 763, 766, United 405 U.S. 92 S.Ct. L. 31 Ed.2d 104, (1972). required 109 are Prosecutor’s offices to establish “procedures regulations ... to insure communications of all every lawyer relevant information each on ease to who deals with requiring it.” Ibid. The reason for all information communi be prosecutor cated prosecutor satisfy trial is to enable overriding obligation to assure the defendant a fair trial. Brady, Under all prosecution material is relevant to a must prosecutor be communicated and shared with the trial in order to prosecutor enable to exercise a judgment sound informed on behalf State to ensure that the defendant a fair receives Kyles 419, 437-38, 115 Whitley, trial. v. 514 U.S. S.Ct. 1567-68, 131 L. (1995). Ed.2d 508 case,
In
recognized
this
has
Court
that there
are
least
through
two
prosecutor
means
which the trial
should have been
informed Detective Norcross’s
715
lawsuit. Ante at
A.2d
First,
officer
was a law enforcement
Detective Norcross
287.
and,
such,
should have
prosecution,
as
he
working directly
with
based on the
had filed a lawsuit
prosecutor
he
informed
regarding police
allegations as those made
same
Carter,
v.
to the defense. See State
negligence that were crucial
(1976)
(imputing knowledge of
A.2d 627
69 N.J.
Lozada,
N.J.Super.
prosecutor); State v.
police investigator to
*27
274,
(imputing knowledge of
260,
(App.Div.1992)
The defense’s claim that the mishandled the situation was mitigation By central to the case in returning the two murders. a death verdict for the murder of Officer Norcross but not for the Investigator McLaughlin, murder of found that evidence about mitigat- defendant’s emotional and mental distress only ed the events that occurred inside the house. The claim that mishandled the situation was vital because it had the potential mitigate both murders if the believed police, trained, properly if could have averted the outbreak of violence. defense, however, trying was faced with the difficult task of present this creating appear- evidence without *28 insulting police,
ance of the who tragic where the victims of presented defendant’s violence. The expert defense three wit- nesses, who police criticized the manner in which the handled the situation, point. prosecutor on this The characterized this as an unfair attack. He attacked the for daring suggest defense to that police the prosecutor mishandled the situation. The impugned experts these for their criticism of what “better men do in the heat day,” of jury reject the and he admonished the to “out of hand” mitigating predicated the factor that was on that criticism. If present the defense had been to able that evidence Detective only alleged Norcross had not police the mishandled the situation, and, but filed a up addition, lawsuit to back that claim through had defendant been discovery develop able evidence to support position, provide defendant would have been able to powerful support opinions for the experts. jury of her The would
521 reject of hand” for put to defendant’s claim “out have been hard presented by prosecutor. experts the urged the reason the Unlike defense, officers at the by Detective Norcross was one trial; eyewitness during was not chief he scene and the State’s opinion fact. paid expert hired to render an after the Given credibility, expertise own his assessment Detective’s police have been in which the handled the situation would manner jury. Norcorss’s views could given great weight by the Detective by reflection” “outsid- hardly lumped together with the “cool be prosecutor ascribed to the defense. ers” that the jury accept prosecu did not cannot be confident that the We reject mitigating factor out of hand argument and tor’s only by the defense were the sources because the witnesses hired contrary, likely support it. To it is that the of evidence to position that the acted given weight have more would they that Detective Norcross himself negligently if understood That, indisputably, induced the agreed it. could have with mitigating ultimate greater weight to the factor and the accord aggravating factors. balance struck between Therefore, com availability at trial of Detective Norcross’s probability plaint at least a reasonable suffi would have created supra, Bagley, 473 undermine confidence the outcome. cient to 682, 105 L. Ed.2d at 494. S.Ct. at U.S. dissent, asked explaining that the defense could have events, though even about his evaluation
Detective Norcross knowledge complaint, finds that they not aware of the were likely to the outcome of Norcross’s lawsuit was not alter Detective 535-36, A.2d The dissent assumes Post at 305-06. the case. that his answers should have been confident the defense a civil motivated a desire enhance claim. would have been perils reasoning ignores A.2d That Post at 306. knowing that Detec cross-examining a hostile witness. Without complaint, it would have been had filed a civil tive Norcross *29 that Detective Norcross counsel to assume reckless of defense The primary mitigating factor. agree defendant’s would with required, particularly defense should not be in a life-and-death contest, engage high-stakes gamble. such a If the defense know, complaint, every had known about the civil it right as had complaint only it could have used developing the as a basis for evidence, additional it could also have asked the Detective about lawsuit, complaint impeach and used the him if he tried to deny police negligent. that the were dissent, saying “single” mitigating that this factor could not outweighed factors, have aggravating the “sum” of the also down plays importance mitigating 537-38, factor. Post at However, A .2d “single” 306-07. this factor that the dissent readily dismisses so constituted the bulk of mitigating defendant’s process case. assessing The determinative severity of a capital game. defendant’s sentence is not a numbers The number aggravating mitigating plays factors versus factors no role weighing process. single A may outweigh factor any aggravating jurors number of If factors. had found that police prevented could have the violent confrontation with defendant, they might have found that factor alone to be a spare sufficient reason to responsibility her life. It is not the say this Court to mitigated the factor could not have crime.
Finally, the dissent asserts that the evidence from Detective Noreross would have been cumulative and that the other evidence helpful was more than complaint Norcross’s would have been. However, Post at 715 A.2d prosecutor 307. unfairly attacked source, the defense’s challenging evidence its experts Thus, status of the as defense witnesses. the source of negligence evidence about the jury’s was central to the evaluation of that complaint evidence. The provided would have non-cumulative, likely trustworthy, more proba source. Its tive worth cannot be minimized.
Accordingly, strongly I concur in the holding Court’s that the withholding of that evidence warrants the reversal of defendant’s death sentence.
523
III
jury
disregard
to instruct
the
It
error for the trial court
to consecutive
would be sentenced
the likelihood that defendant
parole ineligibility.
I
sixty years
total of
terms with at least a
jury instruction was
holding
the
that
the
concur with
Court’s
dissent, however,
Ante at
I
from its
I
that the
endorse
sentencing consequences of its decision.
practical
to consider
Nonetheless,
jury
proposed
instruction
I am concerned
serve
other sentences would
attempts
to limit the use
jury.
perhaps
The instruction
only to confuse and
mislead
considering
other
an artificial distinction between
creates
hand,
factors,
on the one
aggravating or
sentences as
on the
the other sentences
considering undefined effect of
deliberations, on the
subject
jury’s
options
that are
principle
other hand. There should be no
difference
between
telling
punitive
to take into account the
effect of other
compared
sentences as
to a death
in considering
sentence
practical consequences
decision,
sentencing
of its
as the Court now
requires;
permitting
to consider the other sentences
evidence,
“mitigating”
as
majori
as the Court now disallows. The
*31
ty
always
of the Court has
been
it
concerned
would be
unseemly to refer to other
“mitigating”
sentences as
because the
person
fact that
multiple
a
has committed
crimes does not make
person
Feasier,
blameworthy.
85,
less
See State v.
156 N.J.
-,
(1998);
326, 405,
life or death contest —a defendant sentencing is is invoked criminal information. The determinative discretion that far-ranging sentencing judge exercise a discretion as sensitive. A may extremely determining him in the kind of evidence used to assist or to the sources and types and extent of be imposed. punishment [Id. 308.] 477 A.2d 619-20, defendant, spared if from the How then can the fact that a day prison penalty, light outside of death will never see a factor guilty multiple is murders not be considered because he supports acceptable alternative to the death a reasonable sentence? unequivocally recognized, it is error to tell
As the Court has
practical consequence of the
jury not to take into account the
given
guide
is
other sentences. This admonition
defendant’s
It follows that it would
sentencing
in its
determination.
*32
and,
jurors
in the same
confusing
give
be
to
the
this admonition
instruction,
aggra
them that the other-sentences factor is
tell
mitigating.
capital
in
cases are told to measure
vating or
Jurors
by weighing
aggravating and
severity of the sentence
the
the
Bey, 112
Therefore, I think that the sounder rule is to instruct consider the defendant’s other sentences as a factor. very
I disagree also much with the Court’s harmless error analysis of the consequences instruction on the of defendant’s other jury, sentences. The court told the shall not “[Y]ou consid- er the consecutive], likelihood will [that sentences be your likelihood as a basis for impose penalty decision to the death added.) imprisonment.” or sentence of (Emphasis life already As discussed, recognized the Court that it was error to tell the disregard the Nonetheless, likelihood of consecutive sentences. the Court finds that the instruction was harmless error because attorney argued jurors the defense that the should consider that spend prison defendant would jurors her life and the knew that likely the sentences would be consecutive. Ante 715 A.2d 290. words,
In other
judge’s
Court finds the
erroneous instruc-
tion
presumed prejudice
harmless because its
ostensibly
negated by
rebutted and
defense
argument.
counsel’s
That rea-
soning inverts the doctrine
penalty
harmless error
death
cases.
repeatedly
The Court has
improper arguments
held that
of coun-
*33
by
sel are rendered harmless
the court’s correct
instructions
jury
presumed
because the
is
to follow the court’s instruction
See,
III,
rather
than
argument.
e.g.,
counsel’s
Bey
supra, 129
N.J. at
(holding
prosecutorial
A.2d 814
misconduct in
summation was
part by
rendered harmless in
the court’s correc
instruction).
tive
surely
The converse
cannot be
It
true.
cannot
follow that
arguments
correct
of counsel can be substituted for
incorrect
so,
instructions of the court.
If that were
instructions
arguments
always
would
be
long
rendered harmless so
as
got
fact,
either the court or
right.
counsel
it
In
when there is a
conflict, the
prevail.
court’s instructions must
As the Court
recognized recently in
Afanador,
41, 56,
State v.
151 N.J.
697 A.2d
(1997):
“[Arguments of counsel cannot substitute for correct
instructions of law.
judge
The trial
is the most authoritative
figure
Thus,
in the
attorney’s summation,
courtroom.”
an
no
matter how
point
correct on a salient
vitally
that bears
on the
jury’s understanding of the law can
acquire
never
the force of law
if
expressly
it is not
iterated
through
the court
proper and
jury
Moreover,
accurate
instructions.
the error cannot be mini
mized or
It
argued
trivialized.
cannot be
that the court’s instruc
tions that failed to
inform and direct the
to consider the
consequences of defendant’s other
in determining
sentences
severity of her sentence was a minor or incidental omission. That
goes
omission
very
heart of the most fundamental issue this
jury had to determine —should the
put
be
death.
clearly
Court’s omission
constituted an “incorrect instruction.”
Sewell,
138, 150,
(1992)
State v.
127 N.J.
(striking
Therefore, I would also reverse defendant’s death sentence because the court’s erroneous instruction telling not to practical consequences consider the of defendant’s other sentences on its decision was not harmless.
IV presented The defense expert testimony psychiatrist, of a Weiss, Dr. Kenneth who reviewed defendant’s medical records and *34 528 evaluating purpose her. for the at least five times
met with her
examination,
psy
about defendant’s
Dr.
testified
Weiss
On direct
day
murders.
culminating
development
with
chological
was defendant’s
Dr.
testified about
things
Weiss
One of the
testimony
guns. This
to her
psychological attachment
obsessive
psychological
attempt
provide a
mitigation in an
offered in
was
police at
to the
homicidal reaction
explanation for defendant’s
right to
Capital
have a
away
guns.
defendants
tempt to take
her
aspect of
char
“any
their
mitigating evidence relevant
present
State v. DiFris
of their crime.”
or record or circumstances
acter
Ohio,
(1994)
434, 506,
co,
(citing Lockett v.
Perhaps
important
more
than the effect of this evidence to
augment
key
that
aggravating
potential
State’s
factor is the
effect
testimony
evidence,
that the
had on defendant’s
name
ly, that
triggered by
her violence was
her mental and emotional
impairment.
If
jury
the
carrying
believed she was
out a revolu
tionary plan
against
government
directed
authority,
as
likely
it would
discount
acting
defendant’s contention that she was
under extreme
judgment
emotional disturbance or that her
was
seriously impaired by
prejudicial
mental disease or defect. The
impact
revolutionary
of this evidence of a
undermining
motive as
negating
mitigation
defendant’s
heightened by
evidence was
prosecutor
the.fact
that
used
psychology
one
defendant’s
experts
introducing
as the vehicle for
the evidence of her revolu
noted,
tionary motives. As
after Dr. Weiss testified that he
believed
suffering
defendant was
from
prob
mental and emotional
lems,
jury
him say
response
heard
on cross
examination
to a
leading questions
series of
that he believed defendant was a
revolutionary. Clearly, there was no medical basis for this testi
mony, yet
brazenly
emphasized.
it was
flagrantly
elicited and
certainly
help
almost
by hearing
could not
but be affected
expert
from
revolutionary.
defendant’s own
that she was a
Most
Jamerson,
recently,
in State v.
153 N.J.
The Court
plain
I
of whether it constituted
error.
believe
to reach the issue
error,
“clearly
plain
is
which is error
its admission
result.” R. 2:10-2. Whether an
unjust
producing
capable of
an
depends
it
sufficiently prejudicial
on whether
“had the
error was
materially
jury’s
produce
or
an
capacity
to affect the
deliberations
III,
Bey
supra, N.J.
unjust
There was a substantial that risk inferred from the improper evidence that defendant had a kill calculated desire to police officers. That inference would have increased the likelihood they Therefore, would return a death verdict. I would find testimony the elicitation of such from Dr. Weiss was revers- ible error.
V penalty Defendant’s trial contained grave three reversible er- First, reversed, rors. defendant’s death sentence must be as Court, determined because the failure to inform the defense that Detective alleging Norcross had filed a civil lawsuit negligence in the same alleged manner as one of primary mitigating her agree factors. I also that it was erroneous to inform the not to consider the likelihood of consecutive sentencing, finding but I dissent from the that it was harmless Finally, grossly improper prosecutor error. it was for the to elicit testimony expert unfounded from a defense that defendant was a *37 revolutionary Therefore, revolutionary and killed out of zeal. I grounds. would reverse on all three defendant, guilty It is clear that committing this terrible murders, given not penalty precisely a fair trial. It is ilk, clear, are guilt of this those whose is whose crimes
defendants horrible, grossly unsympathetic, who and whose characters are challenge put judicial system to test. The our its severest fairness, process such a defendant due and fundamental accord case, in though present any daunting in is most and formidable capital prosecution. challenge here. The State did meet
COLEMAN, J., part dissenting part. in in concurring opinion respects except holding its I concur the Court’s all that defendant’s death sentence must be vacated because of a Brady violation. (1) Brady
The three elements of a
violation are:
the evidence
(2)
accused,
suppressed by
it
must be favorable to the
must be
Illinois,
(3)
Moore v.
prosecution, and
it
be
must
material.
786, 794-95,
92 S.Ct. at
33 L. Ed.2d
U.S.
(1972).
agree
majority
I
with the
that the first two elements are
My disagreement
majority
the mate
satisfied.
with the
concerns
disagree
majority’s
riality element.
I
with the
conclusion that
complaint
profoundly
evidence of the Norcross civil
“would have
of the ease.” Ante at
jury’s perspective
715 A.2d
altered
majority’s
disagree
287-88.
I also
with the
conclusion that
it is
“reasonably probable
greater
given
would have
factor(s)
weight
mitigating
thus substantiated and would not
beyond
aggrava
have been convinced
a reasonable doubt that the
ones.” Ante ting
outweighed
circumstances
I
persuaded
I During penalty phase, sought prove the follow- (1) ing mitigating factors: that defendant was under the influence of extreme mental and emotional disturbance insufficient to consti- *38 (2) prosecution, 2C:ll-3a(5)(a); tute a defense to N.J.S.A. capacity appreciate defendant’s wrongfulness to of her conduct requirements and conform to the of significantly the law was (3) impaired, 2C:ll-3a(5)(d); factor, N.J.S.A. and the catch-all 2C:ll-3a(5)(h). part factor, N.J.S.A. As of the catch-all defen- major dant’s contention was that the law enforcement officers who sought to execute the of search defendant’s bedroom had inade- quate training, preparation, support County from the Camden Prosecutor’s Heights Department Office and the Haddon Police dealing mentally person, for with a especially disturbed one known to have a firearm. support
In of mitigating argument defendant’s that both the County Heights Camden Prosecutor’s Office the Haddon Department officers, inadequately Police had trained their defen- Novak, testimony dant offered the Esq., Theodore of the New Jersey Guardianship Advocacy. Division of Mental Health and police Novak testified that the should have taken defendant to a screening mental immediately health center after she made the herself, kill attempting threat rather than In arrest her. addition, presented testimony of Dr. Paul McCau- ley, professor criminology University Pennsylva- at Indiana testified, McCauley Novak, nia. Dr. agreeing with there police were errors that occurred before the left the Nelson home. McCauley that, Dr. testified based on the facts known to the residence, returning officers before to the Nelson the search clearly “high warrant was risk warrant” and neither the Camden County Heights Prosecutor’s Office nor the Haddon Police De- partment any grading system had formal for the risk involved in warrants; they the execution of any nor did have formalized protocol dealing for dangerous with the execution of a warrant. According McCauley, plan place, to Dr. if such a were police very actions of the suggest would have been different. He techniques ed an assortment of various that the could have McCauley’s opinion It Dr. police badly used. was that the mis- warrant, handled the execution of the and that the lack formal- substantially procedures contributed to ized for warrant service Investigator McLaughlin and Officer Norcross. the deaths of State, Detective Norcross was the second witness For the 29,1997, day penalty trial. testify April on the first He *39 questioned concerning appropriateness of the officers’ not executing it was actions when the warrant. He testified procedure Investigator McLaughlin’s regarding decision to be cross-examination, executing the warrant. defense used On explore not the issue further with Detective Norcross. counsel did reflects, accurately majority opinion it was discovered As the a civil after the trial had ended that Detective Norcross had filed defendant, complaint against parents, County her the Camden Office, Heights Department. and the Haddon Police Prosecutor’s verified, 18,1997, complaint, April on The which was was filed just days it would two before have been barred the statute County complaint alleged The that the Pros- limitations. Camden negligent performance by failing in the to ecutor “was his duties safety provide proper training and instruction to ensure the Officers; Heights failing Haddon Police to instruct his staff to so Heights Department; the officers of the Haddon and warn Police negligent.” complaint was otherwise Detective Noreross’s also alleged physician negligently provided pre-opera- that defendant’s post-operative “gender identity and for tive treatment confusion.” Although complaint County was served on the Prose- Camden verdict, days jury cutor five before the returned with its jury was not served until after the returned its verdict. Norcross, respect single to the murder of Officer inter- With rogatory regarding on was listed the verdict sheet the lack of proper training supervision executing and of the officers warrant. It stated: search juror other factor which finds relevant Nelson’s Leslie any any prospects including, offenses, rehabilitation or to the circumstances of the but not limited to the defendant’s contention that the law enforcement who on the 20th of officers, trying investigation illegal out an 1995 were and search for firearms carry
April, training, bedroom, in Leslie Nelson’s had from inadequate preparation, support Heights the Camden Prosecutor’s Office and from the Haddon Police County dealing known to for with a disturbed one possess person, particularly Department a firearm. any mitigating factor jury was instructed that it could find The evidence, proof, any that there was no burden of from reliable unanimity required. Although the same three miti- was not jury regarding each of the gating factors were submitted murders, differently on for each two voted the factors Investigator McLaughlin, jury unani- murder. In the case of disturbance, jurors mously found extreme mental or emotional two appreciate wrongfulness of found that defendant did not her conduct, jurors and four found that the catchall factor was estab- contrast, Norcross, In in the case of Officer voted lished. factors, reject and three unanimously to the first two jurors for the catchall factor. voted
II
analysis
suppression of
focus now shifts to an
of whether
*40
Brady materiality
As the
complaint
civil
satisfies the
element.
clear,
Supreme
has
majority
the United States
Court
makes
materiality
“only if there
stated that the
standard can be satisfied
that,
probability
is a reasonable
had the evidence been disclosed
defense,
proceeding
have been differ
the result of the
would
probability5
probability
to under
A ‘reasonable
is a
sufficient
ent.
Bagley,
v.
473
in the outcome." United States
mine confidence
(1985).
3375, 3383,
481,
667, 682, 105
87 L. Ed.2d
494
U.S.
S.Ct.
possibility that an item of undisclosed information
“The mere
defense, might
or
affected the out
might
helped
have
have
trial,
‘materiality5 in
constitu
does not establish
come
97, 109-110,
Agurs,
v.
427
96
tional sense.” United States
U.S.
(1976).
342,
2392, 2400,
Jersey
New
has
49 L. Ed.2d
353
S.Ct.
Marshall,
materiality.
v.
adopted
Bagley standard of
State
the-
155-56,
(1997);
89,
Knight, 145 N.J.
Contrary assertion, to defendant’s suppressed complaint itself is not substantive complaint evidence. The unverified was signed by plaintiff represented counsel for allegations mere by made counsel on behalf of Detective Norcross. R. See 1:4-5. complaint signed April and filed 1997. The fact that complaint may hearsay be deemed to constitute insofar as Detective Norcross is concerned does not mean that defense counsel could not have used the document to question assist with ing case, him. Given what defense counsel knew about however, questions the same could have been asked without the complaint. Strategic choices made defense counsel as to plausible options virtually Davis, unchallengeable. are State v. (1989). 116 N.J. 561 A.2d1082 Defense counsel knew that two April murders occurred on 20, 1995, and that Detective Norcross was shot in the same incident. Defense improper counsel served notice that training supervision of the law enforcement executing officers search warrant were included in mitigating the catchall factor. Indeed, they urged the trial court allegation to treat as a separate mitigating They factor. also knew Borough that the Heights Haddon County and the Camden Prosecutor were the public they alleged entities the notice of factors *41 negligently to supervised have persons trained and executing They the warrant. also knew that Detective Norcross was one of those who went into the house execute the warrant and was severely injured he, too, when was shot. Defense counsel are presumed to have known that because Detective Norcross was any entity injured, ninety days public notice on he had serve 59:8-8a, 20, suit, years April N.J.S.A. and two from intent to file N.J.S.A. 59:8-8b. complaint. Given the state of to file a Detective knowledge, counsel’s it was clear when defense complaint had April on if no civil been Norcross testified it filed then was time barred. addition, anticipated that the
In
counsel should have
detective
enhance,
hurt,
civil claim.
have
motivated to
his
would
been
damaging
alleged
Any
that would have been
to defendant’s
answer
damaging to
civil
mitigating
equally
factor would be
the detective’s
contrary to the
claim.
made under oath that are
Statements
against that
pecuniary interest would be admissible
declarant’s
803(c)(25). The fact
to N.J.R.E.
person
pursuant
in a civil action
would
of the
victims was the detective’s brother
that one
murder
might have
increased the risk that his answers
been
not have
the law enforcement
against defendant’s best
interest. When
warrant, they
search
officers left defendant’s home
obtain the
very
was
already concluded that she was
unstable. She
had
circumstances,
offi
being paranoid. Under the
described as
strong potential for concurrent causes of Detec
cers created the
allegations
complaint
death. The
tive Norcross’s brother’s
trained,
no
improperly
but there were
were that the
were
negligent.
killed were
allegations that the officers whom defendant
material,
complaint
was
Defendant cannot demonstrate how
result
knowledge
complaint
have affected the
or how
of the
would
allegations
majority assumes that “the
Although
of the trial.
case,”
profoundly
jury’s perspective
have
altered
would
287-88,
a
ante at
not have reached
715 A.2d
would
complaint
presented
if
with the
because
different conclusion even
outweighed
mitigat
aggravating factor alone
it held that each
complaint
majority claims that evidence of the
ing factors. The
of one or more of
jury to find “the existence
could have led the
mitigating factors.” Ante How
In Officer Norcross did not arrive at the scene until after the shooting in the house had responded ended. He part as backup of a by team. He was shot a rifle while he standing across the street in driveway. jurors a unanimously rejected the first mitigating jurors, two four, factors. Three opposed as voted that catchall factor had been established. The circumstances surrounding the two murders were so different that I am suppressed confident that complaint does not meet materiality standard. addition,
In jury through informed the expert, her Dr. McCauley, that only improper was there training and supervision of the executing warrant, officers but that subse- quent murders, County the Camden Prosecutor and the Borough of Heights Haddon had procedures instituted written “relating high the execution risk Although warrants.” presentation of improvements that evidence to show operational procedures subsequent to the murders to infer an admission public they entities that previously were negligent would have N.J.R.E. 407 in a violated non-capital case, impact of that suppressed than the helpful to defendant was much more evidence have complaint would been. Norcross about question Detective
Finally, the failure *43 strategy. matter of complaint was a pending or civil potential experts to establish rely on strategy was to Defendant’s trial that, had to training supervision. To do improper expert of testimo preconditions for the admission that the concede requirements Generally, there are three basic ny met. had been “(1) testimony testimony: the intended expert for the admission beyond the ken of the subject is matter must concern (2) a state of the to must be at juror; the field testified average rehable; sufficiently testimony could be expert’s an art such that (3) offer the expertise to must have sufficient the witness 337, Jamerson, 318, 708 153 N.J. testimony.” State v. intended 178, 208, (1998) A.2d Kelly, 97 N.J. 478 (quoting State v. A.2d 1183 (1984)). complaint did suppressed in the allegations any potential qualifying expert or affect an make the detective expert. him as an Brady, but it under only complaint not material
Not was the subject at trial. The presented to other evidence was cumulative presen fully litigated through the police training negligent McCauley. including Dr. “Evidence experts, tation of defense possibility a reasonable does not create merely that is cumulative Carter, 91 v. affected.” State would have been that the verdict 114, 449 A.2d(1982). N.J. verdict
“[Tjhere
that a different
possibility
no reasonable
[is]
v.
[complaint]
disclosed.” State
been
have arisen had the
would
(1991).
Marshall,
unless the
“For
I would affirm GARIBALDI, J., joins in this dissent.
For vacating and HANDLER, remandment —Justices POLLOCK, O’HERN and STEIN —4.
For GARIBALDI and COLEMAN —2. affirmance —Justices