*1
Leslie Nelson by opinion of the Court was delivered The ZAZZALI, J. Nelson, Nelson, pled formerly known as Glenn
Defendant Leslie aggravated to the killing police of officers and guilty two trial, penalty-phase she After first of a third officer. her assault the murder of Officer John prison to life in was sentenced for the of Officer John Norcross. McLaughlin and to death murder This Court vacated defendant’s first death sentence because the State withheld evidence that was favorable the defense and jury’s material to the penalty. deliberations on the death State v. Nelson, (1998). N.J. A.2d 281 matter was for a on sentencing remanded new trial the Norcross murder. trial, penalty-phase subject After the second which is the of this appeal, again penalty. Nelson appeals received the death She now right. this Court as of N.J.S.A. 2C:ll-3e. special find error in
We improper verdict sheet and prosecution during comments made summation. We there- imposition fore reverse the of penalty. the death
I A Early on morning April Haddon Heights Police Robert Detectives Griffith and Richard Norcross were summoned to defendant’s Investigator home to assist John McLaughlin of the County Camden Prosecutor’s Office and Carmelo Garcia (DYFS) Family Division Youth investigating Services complaint against residing defendant. had been Defendant parents. home with her
Investigators presumed defendant home because of the presence of her van outside the residence. attempts After initial failed, to contact defendant requested police two officers dispatcher call defendant at dispatcher persuaded home. The open defendant to telling the front door police after her the were investigate there to van. investigators her After the defen- told they her, dant that were to investigate appeared there *12 “paranoid” and Although “somewhat afraid.” initially defendant permit investigators refused the into the home and communicat- only through door, ed with them ultimately screen defendant McLaughlin allowed and Garcia meeting into the home. The between defendant investigators and the approximately lasted ninety calm,” minutes. The conversation “generally until increasingly grew emotionally upset,” and “became defendant wrongdoing charged her with investigators the two “paranoid” as rights. of her informed her and to search consent requested defendant’s investigators then However, defen- request. their denied Defendant
her bedroom. upstairs investigators to search the allowed dant’s mother entry into investigators permitted house and defendant been manufac- There, had they noticed that defendant her room. McLaughlin en- Investigator After bullets. turing homemade admitted to defendant guns, about in a discussion gaged defendant closet, not but would gun in her kept that she investigators home, McLaughlin and Garcia exited weapon. As produce McLaughlin returning. After they planned if on asked defendant superiors, defendant with his had to check that he told defendant custody. if into kill herself taken she would indicated station, Detective Heights police returning to the Haddon On bedroom to search defendant’s sought a warrant Richard Norcross “no- for a Norcross asked Detective Specifically, for firearms. the warrant warrant, police to execute allow which would knock” municipal A presence. their notifying defendant of first without request. Norcross’ judge granted Detective court Norcross, afternoon, Detective p.m. that 2:00 approximately At Heights police other Haddon and four Investigator McLaughlin, There, McLaughlin decided home. arrived at defendant’s officers attempted to instead “no-knock” warrant execute mother answered Defendant’s in conversation. engage defendant McLaughlin had Investigator told defendant door and answered, he the f— does “What returned, to which defendant a few more that he had McLaughlin told defendant want?” stairs, floor top the second From the her. questions to ask re- McLaughlin a warrant. had if the officers asked not an for her bedroom warrant he had a search sponded that warrant. arrest defen- point he heard that at this testified Norcross
Detective staircase, up run McLaughlin and saw running upstairs dant *13 gripping weapon. McLaughlin one hand top his As reached stairs, an McLaughlin. defendant fired AK-47 assault rifle at McLaughlin stairs, fatally fell down the wounded. Detective fire, Norcross returned defendant’s but defendant shot Noreross hand, arm, in the and twice in the chest. As Norcross down slid stairs, railing defendant leaned over the and shot Norcross leg. began When defendant to follow the officer wounded stairs, pleaded down the her mother intervened and with defen- stop shooting. During exchange, dant to Detective Norcross escape through to was able a side door. window,
From a police second floor firing defendant resumed on positioned home. During firefight, around the defendant shot Norcross, killed and Officer John Detective Norcross’ brother one of three officers who had arrived at scene after the initial shot, gunfire. police dispatcher After Officer Norcross telephoned stop shooting. defendant and asked her to Defendant dispatcher told the stop shooting “[t]ell them to Ime. don’t why they’re shooting.” know also him Defendant told that she did jail. not want her room or searched to be taken to shooting finally p.m. ended 2:30 around After extended negotiations police, with defendant surrendered at 4:00 the next morning.
B charged Nelson was indicted and with two purposeful counts of knowing conduct, or her contrary murder own to N.J.S.A. 2C:ll-3a(l) (2); eight first-degree attempted counts of and/or murder, 2C:5-1; contrary to third-degree N.J.S.A pos- unlawful firearm, 2C:39-5f; session an assault contrary to N.J.S.A. second-degree possession of a firearm for an unlawful purpose, contrary pled guilty N.J.S.A. 2C:39-4a. Defendant to the two capital second-degree murder counts and to aggravated as- sault of Detective Richard Noreross. trial, penalty
After defendant’s first
she was
sentenced
life
imprisonment for
Investigator
the murder of
McLaughlin, with
murder of
to death for the
ineligibility, and
years
parole
thirty
However,
Nelson’s
vacated
this
Norcross.
Court
John
Officer
Nelson, supra, 155 N.J.
Brady
violation.
due to
death sentence
83, 87, 83
281;
Brady Maryland, 373 U.S.
v.
*14
715 A.2d
See
at
(1963)
215,
(holding
prosecu
1194, 1197,
Defendant’s charged with jury was penalty trial The second in March 2001. only. John Norcross for the murder of Officer a sentence imposing factors aggravating trial, unanimously found two jury At that escaping purpose of for the was committed present: the murder trial, detection, or confinement punishment, apprehension, factor); (the ‘escape detection’ a firearm possession of unlawful engaged in the were while the officers occurred and the murder factor). (the servant’ ‘public duties of their official performance is, factor, that that defen- rejected “other murder” murdering in the course Norcross murdered Officer dant factor. 1 in favor of that of 11 to McLaughlin, by a vote Officer unanimously found factors, jurors regard to With 1) had pled guilty and had defendant mitigating factors: three 2) any right to given up had accepted responsibility; 3) parole; and making positive defendant was contribution to prison Additionally, jurors life. eleven found that Nelson had a long history psychological of mental illness or problems that conduct; jurors eight contributed to her found that defendant’s psychological psychiatric make-up or susceptible made her to an reason; emotional judgment breakdown and loss of four jurors inadequate determined that training provided by law en- crimes; forcement officers contributed defendant’s and four jurors found that triggered, part, by Nelson’s actions were conduct of law jury unanimously enforcement. The found that the aggravating outweighed factors the mitigating beyond factors doubt, reasonable and the trial court accordingly sentenced defen- dant to appeal death. This followed.
C Because psychological history defendant’s is relevant to an evaluation constitutionality argument, defendant’s we set forth *15 history of defendant’s mental in illness detail.
1. History Social Defendant’s
Sheila Fairchild Sheila Fairchild is a licensed social principal worker and the investigator Office, for the DYFS unit of Public Defender’s and on testified behalf of the defense. She interviewed defendant eight separate on occasions for a twenty-eight total of hours. compiled Fairchild history a social based on her interviews with thirty-five defendant and other individuals in involved defendant’s life, including family report members. Fairchild’s included the following findings.
In biological male, defendant was born a named Glenn Nelson, and was the second of four children.1 Defendant’s mother defendant will be using Generally, referred to as Nelson or defendant. When we will refer pronouns to Nelson as "his” or "him" in the before his period reassignment sexual and to "her” in the operation, after the period operation. continuously every day approximate said that defendant cried ly kindergarten. when he started Defendant’s kinder ten weeks emotionally an garten reported teacher that he was disturbed years, increasingly During defendant’s teen Nelson became child. reclusive, relationships in eliminating interpersonal all his life except that with his mother. One childhood friend said that he high approached,” a shell as school and defendant’s “went into him brother called “hermit.” problem bed-wetting, with for which his father nick-
He had a “Uriney”. stop bed-wetting, stated named him To defendant string penis put plastic wrap his that he would tie a around restrooms, his father also Mocking public over it. his fear of extremely him “Mabel.” Defendant was self-conscious called having genita- appearance unhappy his and was about male about lia. loner,
Family stated that defendant became more of members school, family].” high In Nelson [the “isolated from rest high being constantly picked on. Defendant’s school recalled usually principal that Nelson ate alone the lunchroom. recalled women, fantasizing enjoying photos of nude Defendant recalled pictures. in the His identification that he was one of the women psychological condition deteriorated. with women intensified as his through began shaving legs rummaging Good- Defendant his underwear, put on when he will bins to find ladies’ which he would longer twenty-six, he could no got By home. the time he was year began picture himself as a male. One later Nelson reading reassignment surgery after about thinking about sex surgery. Defendant traveled to Colo- performed doctor who doctor, Dr. reassignment to a sex rado twice 1986 to talk taking Stanley to start Biber. The doctor advised *16 female hormones. year, changed his
In that those around Nelson had noticed same job began wearing army fatigues to his at an auto- behavior. He ' stated, employer “I knew he was dis- parts warehouse. His year knife-point turbed.” That also was defendant robbed Philadelphia, prompted purchase handgun. which him to a
In possession weapon defendant was arrested for of a resisting presentence report dum-dum bullets and arrest. The indicated that gun. defendant stated he “fell love” with his probation Defendant received and was undergo psycho- ordered to logical evaluation.
Defendant’s co-workers noted his fixation on suicide. Defen- manager dant’s former him person recalled as an eccentric ob- suicide, supervisor job sessed with and a at a later stated that spoke constantly Nelson In about suicide. defendant’s mother found a suicide note that stated that “he was sick of his life anything and he decided to find out if death had better to offer.” Subsequently, involuntarily defendant was committed to a Camden County psychiatric facility days. for nineteen year following began preparation Nelson change for the sex surgery, persons but the with whom he consulted voiced concerns about his mental electrolysis health. The technician felt that defendant was “unstable” and him a specialist referred gender counseling. applied Defendant reassignment for sexual surgery in 1989 .began attending support transsexual groups. began Anderson, He therapist, see certified sex Dr. Barbara to fulfill counseling requirement surgery. began He also estrogen treatment. In defendant told Dr. Anderson that he “big empty eggshell,” felt like and that he wanted to look like woman, thereafter, but not Shortly be a woman. defendant augmentation surgery. underwent breast Despite being alienated by family members, However, appeared happier. defendant Dr. Anderson concluded that defendant’s psychological prob- severe lems though remained. Even he did not feel a woman like trapped body, in a man’s according which to Dr. Anderson is how feel, sex-change candidates completed should the sex change in March 1992.
Nelson encountered returning severe harassment on to her job change warehouse after operation. Specifically, her sex *17 manager employees warehouse’s officer stated that the other possible, “avoided Leslie whenever ridiculed her behind her back[,] really and the bold and curious ones would ask her questions operations about the and if one even asked Leslie he implants.” job could feel her breast May Defendant left that pursued 1992 and her desire to become an exotic dancer. She was organization an go-go hired that contracted with bars. Howev- er, dance, reject when she was sent to customers would her because of her clumsiness and their realization that she had been a male. Her failures as an through exotic dancer continued years, rejections.” next few as she “countless Defen- received booking agent dant’s said dancing she reacted to her failures with depression, which worsened as Nelson continued to fail as an exotic dancer.
In began prostitute herself. She wrote mother, stating another suicide note to her living she was tired of and that it would if have been better she had never been born. She said she even felt like a failure at suicide because she could up courage not work to kill herself. In she wrote a customer, suicide note to a married man who had been confess- ing to him that she was a transsexual. wrote that had She she felt time, self-hatred, long suicidal for a that she was filled with any hope that she did not see for the future.
2. Medical Records Defendant’s Defendant’s mental health records additional facts disclose con- cerning her condition. community
Defendant was counseled at a health center after weapon possession. her 1987 arrest for Defendant stated that mugging after her “increasingly paranoid she had become about getting mugged again,” past and that she had been suicidal for the year. interviewing diagnosis depres- atypical clinician’s sion, possibly personality post-traumatic schizoid disorder and stress disorder. Documents also indicate that defendant had “profound self-esteem,” problems with problems low “severe with withdrawal, thoughts, paranoid, suspicious hostili- obsessive
social ty,” proportions dependency, “problems [with] of modest tension, affect, delusions, anxiety, inappropriate relationship with peer groups, with conflict and siblings, interaction with deals stress, judgment.” notes also indicate that de- Treatment [and] *18 ideation ever since she experienced fendant said she had suicidal However, that defendant had “no was a child. some notes indicate plans or homicide” and “no future for himself.” idea of suicide involuntarily committed to the Camden When defendant was County facility primary diagnosis psychiatric was adjustment depressed personality mood and mixed disorder with However, schizoid, borderline, disorder with and antisocial traits. prognosis guarded was because defendant had exhibited “little discharge insight follow-up.” and no interest In the “social summary,” psychiatric quite a that “it [was] social worker wrote depressed seriously [defendant] conceivable that could become others,” injure enough to himself or and recommended further psychotherapy. by psychological Philip
Another evaluation Dr. Slonim indicated that Nelson manifested schizoid tendencies.” In that “[m]arked evaluation, only thing he stated the defendant said she would bring gun target practice. with her on a desert island was a for preparation
Dr. Barbara Anderson interviewed defendant in surgery. high his said that defendant would a risk of She be Nevertheless, surgery. suicide if denied Dr. Anderson believed might present high surgery still a after if defendant risk his expectations were not met. Anderson wrote that defendant was empathy,” capacity appreciation “without the for or and was woman, “solely becoming though focused” on even he did trapped body, feelings feel as if he were a woman in a man’s generally people associated with who become transsexuals. Mobilio,
Pre-surgery psychiatrist, Dr. notes from another indi- delusions, hallucinations, psychosis, cated “no evidence of no no no disorder, ideations, thought no suicidal or homicidal and minimal anxiety depression.” judgment and also was Social evaluated as “good.” gross memory, There were “no deficits intellectual attention, fimctioning, or concentration.” applied transgender program When to the at Penn- sylvania Hospital, Multiphasic Personality the Minnesota Invento- ry “appeared suffering Test indicated that he to be from a depressive may diagnosis dysthemic disorder and receive major rejected disorder and affective disorder.” Defendant was by program. again diagnosed dysthemia He was with and adjustment Giunto, depressed disorder with Dr. mood Lisa psychiatrist community staff at a mental health center.
Dr. Kenneth Weiss Weiss, psychiatrist Dr. the defense who testified Nelson’s trial, penalty met with defendant five times between and Weiss, According her records. to Dr. reviewed defen- following dant suffered from the mental illnesses and disorders: (1) dysthemia, long-standing major depression, which was a murders; (2) depression identity at the time a sexual (3) disturbance, born; hating gender into which she *19 disorder, adjustment ... which is an “acute disturbance that happens in a period something happening short of time due to to case, an individual.” In Dr. Nelson’s Weiss concluded Nelson particularly adjustment during suffered from disorder the events prior to the murders.
Dr. Weiss testified that the sixth and seventh factors offered in noted, mitigation were true. As those factors were that defendant long history problems psychological has of mental illness and murders, day that contributed to her conduct on the and psychological psychiatric makeup that defendant’s and made her susceptible judgment to an emotional breakdown and loss of and day taking away reason on the The threat of her the murders. jail, guns going keep up and of to where she could not her woman, appearance as caused an emotional breakdown ability affected Nelson’s to reason. Weiss believed that she was point day of suicide on the of the murders. He stated that loss of control to that occurred attributable Nelson’s mental illness McLaughlin through
during the murder continued to the Norcross murder. opinion
Weiss’ was that should not have been allowed reassignment surgery not a to have the sex because she was transsexual”; trapped “classic she did not feel like a woman in a wanted, reason, body. body man’s She hated her for some to ill, person mentally if a excite men. He testified that is it calls question person choosing surgery into whether that is for the right reasons. Weiss also testified that defendant treated her guns they psychiatrist as if were her children. The testified that typical diagnosed personality it is of those with schizoid disorder develop objects.2 such people attachments to inanimate Such well-equipped they are not to deal with stress because lack a self-understanding adaptations. mature or mature global functioning Dr. Weiss estimated that defendant’s at the hundred,” forty time of the murders was at “about out of a which “basically failing grade living.” he described as ...
Dr. Robert Sadoff Sadoff, State, Dr. who testified for the met with Nelson in 1997 approximately psychiatric for two hours and reviewed her agreed part” medical records. “in Sadoff with Nelson’s contention mitigation long history psychiatric problems that she had a that contributed to her violent conduct. significant distinction between Sadoffs and testimo- Weiss’
nies was that Sadoff Investigator believed the murders of McLaughlin separated by and Officer Norcross were a twelve- “cooling period. testimony important minute off’ Sadoffs testimony attempted justify State’s ease because that to the murder, the harsher sentence of death for the Norcross view of the fact that Nelson had been sentenced to life *20 Diagnostic and Statistical Manual Mental Disorders states that those of with borderline disorder feel more secure" with inanimate personality "may Diagnostic Association, American and Statistical Manu- possessions. Psychiatric (4th ed.1994) (hereinafter DSM-IV). al Mental Disorders 652 of Although the State was murdering Investigator McLaughlin. in the Norcross was committed trying prove that the murder of to establishing the purposes for of McLaughlin’s murder course factor, relied on Sadoffs aggravating the State “other murder” severe sentence argue that Nelson deserved the more opinion to murdering Officer Norcross. theory, opinions Dr. did not “cooling his off’ Sadoffs Aside from acknowledged that Dr. significantly diverge from Weiss’. Sadoff diagnosed with disorders. He Nelson Nelson had various mental narcissistic, from personality disorder that included traits a mixed schizoid, avoidant, personality disorders. He con- and borderline attachment to of Nelson’s bizarre curred with Weiss’ estimation conclude ... guns, stating psychiatrists “could her guns] like her children.” may have considered [her [Nelson] opinion that was obsessed disagreed with Weiss’ Nelson Sadoff Rather, thought had about Sadoff believed that “she with suicide. suicide, it,” could not be obsessed she had talked about but she regard life. “ample opportunity” had to end her With because she well-being, Sadoff change on her to the effect of Nelson’s sex however, disaster; he did believe surgery would label expectations. operation that the did not meet Nelson’s in her that Nelson had a total breakdown Dr. Sadoff denied example, cited Nelson’s ability judgments. For Sadoff to make her firing Robert Norcross after stop at Detective decision opin- Sadoffs stepped in between her and the detective. mother a total breakdown reason ion that Nelson did not have insanity plea. of an judgment is consistent with the absence however, impairment had an agreed that “she Significantly, Sadoff condition, which made time of her judgment of her at the because impairment an partial to a breakdown or her more vulnerable person.” testified average Sadoff judgment more than her part] clearly impaired both ability [in to think that “Nelson’s agreed that Nelson’s anxiety depression.” He also by her and her beyond normal fear that jail going fear of “was above jail ... because of her condition.” anyone going have would
II We first consider defendant’s claims that error inhered in the jury instructions to the special and the verdict sheet. Defendant by maintains that the trial court failing erred jury instruct the adequately clearly and jury order for the specific aggravating consider a weighing factor in the aggra- vating sentence, and factors to determine defendant’s aggravating factor unanimously by had to be jury found the proven beyond to be claim, support reasonable doubt. To her points jury’s responses to the completed on the verdict which, asserts, sheet she jury demonstrate that the failed to unanimity understand the requirement for the consideration of an aggravating during factor weighing process. Accordingly, defendant claims that the trial court committed reversible error and her death sentence should be vacated. The State counters correctly that the trial court jurors multiple instructed the times unanimity on requirement factors, aggravating and that the verdict sheet jury does not show that the misunderstood the Moreover, claims, instructions. possible State error in the instructions was harmless. trial,
At sentencing proffered the State aggrava three (A) ting factors: murder purpose committed for the escaping detection, apprehension, trial, punishment or confinement for an other by offense another, committed the defendant or N.J.S.A (B) 3c(4)(f); 2C: engaged murder while in the commission of 11— murder, (C) another 2C:ll-3c(4)(g); N.J.S.A. and murder of a servant, 2C:ll-3c(4)(h). public N.J.S.A. unanimously aggravating found that A proven factors and C had beyond been However, only reasonable doubt. jurors eleven found aggravating factor engaged B—murder while in the commission of another murder —to have proven beyond been a reasonable doubt. Be Jersey cause New requires law capital sentencing jury to disregard an aggravating factor if that factor is not found unani mously by Koskovich, jury, State v. 168 N.J. 776A.2d (2001), jurors were weigh only authorized to aggravating mitigating factors to determine against A factors and C 144. 776A. 2d punishment. Id. appropriate court made that the first reference Defendant concedes weighing requirement for the consideration unanimity to the introducing the correct. After aggravating factor was of an jury, and mitigating factors to the aggravating concepts *22 beyond a proven had to be aggravating that factors explaining considered, the being the court instructed before reasonable doubt jury as follows: deliberating jurors jury aggravating must all 12 factor, to find any In order the aggravating agree a reasonable doubt. the factor beyond that the State has proven jury aggravating finding the [sic], factor to the of words, In other with respect aggravating before it be factor has been may unanimous that an proven must be jurors an has not more decide that the State proven considered. If one or juror aggravating then no aggravating doubt, a reasonable factor or factors beyond weighing aggravating alleged aggravating in the factor or factors consider the may disregard alleged aggravating factor which all 12 Kather, you’re any process.
jurors are to further And you was a reasonable doubt. do not find proven beyond relating alleged aggravating disregard factor. to such an evidence any conveyed properly acknowledges that this instruction Defendant aggravating weigh specific juror could consider and that no unanimously that factor jurors found all twelve had factor unless However, defendant beyond a reasonable doubt. proven to be that correct finally provided by the time the trial court alleges that the previously had mentioned jury, the the court instruction to aggravating proof for an “beyond doubt” standard a reasonable unanimity requirement. to the without reference factor six times “beyond a on the emphasis court’s responds that the The State unanimity early in mentioning doubt” standard without reasonable no conflict there is consequence is of no because the instructions unanimity requirement. that standard and between unanimity instruction on claims that the correct Defendant that only accurate instruction above was the requirement set forth following cites to the Defendant gave court on the issue. the trial unanimity require- include the purported instruction as one you “If but did not: aggravator of an for the consideration ment that one or doubt unanimously beyond found a reasonable have exist, you more aggravating mitigat- factors then will consider the ing unanimity requirement evidence.” asserts that Defendant portion convey mentioned in that does the instruction unambiguously specific aggravating factor must be found unanimously balancing to be process. order considered in unanimously agree proven could State had “one factors, or aggravating yet more” not have still been aware only aggravators juror that the that each could consider were the unanimously ones found.
Next, defendant contends that the trial court’s omission of the unanimity requirement aggravator for the of an consideration egregious its “ultimate particularly instruction” was because that given “perhaps instruction single point” most crucial jury charges. provided: This “ultimate instruction” aggrava- do not that the State one or you unanimously had more proven If find ting have factors, deliberations concluded and the defendant will he your sentenced to life in without prison possibility that the parole. you unanimously If find aggravating State has reasonable doubt one proven or more beyond then factors, weigh aggravating against must factor or you factors factors which found. you’ve *23 added).] (Emphasis [ Defendant that this claims “ultimate instruction” is deficient for discussed, the previously same reason as the instruction Supra at 448, 803A .2d 19. alleges
The State that the court did reiterate unanimity the requirement during both ambiguous by instructions deemed de- Further, instruction, fendant. it notes the following immediately preceding instruction,” the “ultimate as evidence that the trial correctly jurors court instructed the multiple times on the unanim- ity requirement aggravating factors: relating mitigating jury. The evidence factors should be discussed the fully by agreement To the extent should to reach an on possible, you attempt the question mitigating of whether a factor not particular does or does exist. However, the law finding does mitigating with unanimity to the require respect factors. juror mitigating each Therefore, must or not individually determine whether each juror factor aggravating exists and each must decide whether individually any aggravating outweigh or unanimously beyond reasonable
factor factors found juror mitigating mitigating factors the has found be factor or that doubt the present. added).] (Emphasis [ of her claim that the court’s instructions support In further jury’s response to inadequate, points then to the were proof as of the portion of the verdict sheet “special the verdict” by jury verdict the instructions. The prejudice actual caused sheet stated: aggravating found than one factor then If have more unanimously present, you mitigating outweighs the factors it, itself,
indicate as to each factor whether by added.] [Emphasis a reasonable doubt beyond by following: the jury responded inserting The (0) (12) Yes Factor “a” No Aggravating (1) (11) Yes Factor “b” No Aggravating (0) (12) “c” Yes Factor No Aggravating defendant, eleven jury the indicated that According to because outweighed B jurors aggravating factor the found that itself, likely jurors factor B that the also considered factors it is outweighed determining aggravating factors the whether Thus, inadequate jury instruc- court’s mitigating factors. the trial it was not to jury’s to understand that resulted in the failure tions unani- unless that factor had been aggravating an factor weigh mously found. position its that verdict sheet reinforces State counters unanimity to the repeated trial made reference court question example, first
requirement. the State notes For FACTORS,” sheet, asked labeled on verdict “AGGRAVATING beyond a doubt unanimously “Do find reasonable jury: you As further following factors aggravating exist[.]” the verdict following directive on proof, highlights State aggrava- unanimously found more you “If that one.or have sheet: below,” “2” number “2” number ting present, go to factors were asks if the has portion sheet that being the verdict Finally, argues that the the State any mitigating factors”. found *24 for its claim. It is substantiation special verdict directive itself aggrava- unanimously more than one you found “If have states: 446
ting present, it, by factor then indicate as to each factor whether itself, outweighs beyond factors a reasonable However, doubt.” wording State concedes that the special was verdict section “inartful.” jurors
The State further asserts respond- that fact that the question they ed to the whether found aggravating factor B to outweigh the mitigators itself does not demonstrate that the jury unanimity requirement. jurors misunderstood the were that, asked, simply saying if eleven would have also B found factor outweigh event, mitigators. maintains, In the State jurors B, even if eleven of the did consider aggravating factor that plain it jurors was not error —all aggravating twelve had found outweigh themselves, A and mitigators by factors C to respec- tively. below,
For the reasons forth set we find that trial court’s jury However, instructions per were not se. erroneous we con- sheet, clude that the trial ambiguous wording court’s of the verdict conjunction jury’s obviously with the confused response to the special directive, verdict and the trial court’s refusal to ask the jury clarification, Further, for agree demonstrates error. we with analyzed this error pursuant should be to the standard, harmful Applying error standard. we find that the trial court’s error harmless.
A
“
This Court
repeatedly
has stressed
‘clear and correct
”
jury
Koskovich,
instructions are essential
fair
supra,
trial.’
Brown,
168 N.J. at
A.2d
(quoting
v.
State
138 N.J.
“
481, 522,
(1994)).
[jury]
447
is well-estab
jury
in criminal cases
importance of
instructions
lished,
jury
‘are even
“emphasized
has
that
instructions
this Court
jury’s responsibility to
capital
of the
in a
case because
more crucial
” Koskovich, supra,
or die.’
a
shall live
decide whether
123,
524,
Bey,
v.
112 N.J.
(quoting
776
144
State
168 N.J. at
A.2d
(1988)).
reviewing
162,
It also
that
As for standard of by referencing diminished the trial court’s mentioning the aggravating factor six times before proof for an There is no unpersuasive. claim is unanimity requirement, “beyond a doubt” standard reasonable conflict between the requirement for unanimity aggravating factor and the proof for an aggravating an factor. jury charge itself was holding
Also our supporting jury to the trial court’s statement was the erroneous any aggravating individually whether juror must decide “each aggravating unanimously beyond factor or outweigh factors found or mitigating reasonable doubt the factor factors that juror 444-45, present.” Supra has found to be 803 A.2d at instruction, 17. That although proper not sufficient on own its ly unanimity inform requirement, as serves rein complete forcement of the instruction discussed above. We now consider those instructions that defendant asserts *26 ambiguous. are first you The instruction stated “[i]f that have unanimously beyond found a or reasonable doubt that one more exist, aggravating you factors then will consider the states, evidence.” The second is the “ultimate instruction” that pertinent part, you unanimously “[i]f find that the State has proven beyond a aggravating reasonable doubt one or more factors, you weigh then aggravating must factor or factors against any mitigating you’ve factor or factors which found.” The unanimity requirement noted those instructions does not unam convey biguously specific aggravating that factor to needs be unanimously found in order be balancing to considered in the process. jury unanimously agree can that the State has proven factors, aggravating yet “one or more” and still not be only juror that aggravators may aware that each consider are unanimously jurors the ones found. Some two aggravators; found Therefore, they some found three. unanimously found that the proved factors, State “one aggravating or more” and those two specifically jurors instructions did not inform the who found three aggravators they could not consider the ag non-unanimous gravator or supporting the evidence it.
However, may interpreted instructions also suggesting be as exactly what trial court intended and alleges what the State they impart a specific aggravating factor must be found —that unanimously in order to be considered in the weighing process. party presents interpretation
Each defensible of the instruc- may interpret correctly law; tions. One as conveying them may one interpret misstating them as In the law. view the comprehensive clear and unanimity instruction on the issue deliv- overtly first, nothing to contradict was said and the fact that ered jury instruction, tenet that we must evaluate applying and Simon, whole, N.J. at 737 A.2d supra, 161 instructions as ambiguous instructions render the court’s we do not find that the as a whole. jury instructions erroneous
B provide In order to special verdict sheet. We turn now the analysis, sheet at the reproduce we the verdict context for our opinion. conclusion this unambig above the need correct
We have stressed cases, capital “especially respect with jury uous instructions mitigating factors.” Kos jury’s balancing aggravating kovich, 144. for clear supra, 776 A.2d The need 168 N.J. important. instruc no After verbal verdict sheet directions is less room, they are left given jurors retire tions are and the form. Their efforts to directions on the verdict alone with the they instructions may have about verbal questions answer the verdict sheet certainly involve an examination of almost would *27 often, refer, likely to the to and refer Jurors are directions. unclear, instructions are on form. If verbal directions the verdict instructions, the fully comprehend verbal jurors if or do they likely map road will typewritten primary is the verdict sheet path. use to direct their deliberative sheet Preliminarily, State asserts the verdict the repeated the court made reference its trial position reinforces emphasizes requirement. the State unanimity Specifically, to the following excerpts sheet: from the verdict the page 1 of verdict sheet: On the following any3 a reasonable doubt that
Do find unanimously beyond you aggravating factors exist!;] verdict sheet: it is Significantly, is in the the word any emphasized triply underlined, bold italicized, print. page 2 On of the verdict sheet: aggravating If have found that one or more you unanimously factors were present, go to number “2” [; and] below page 4 On of the verdict sheet: aggravating If have found more than one you unanimously factor then present, outweighs
indicate as to each factor it, itself, whether by factors a beyond reasonable doubt. disagree excerpts support position. We that these the State’s Rather, they we' find that ambiguity suffer from the same as the jury instructions, jury instructions discussed above. Like the merely juror verdict sheet directs that if “any,” each found “one or exists, more” or than aggravating- “more one” factors then jury specify is to on. move It does not jury that the needs to specific be unanimous regarding aggravator a in order to consider it. that,
It ambiguous instructions, is true like jury oral verdict sheet also could have been understood to reflect what the trial court intended and what the conveys— State contends that it specific that a aggravating factor must be unanimously found order be weighing process. to considered in the ambiguously drafted verdict sheet differs from the ambiguous jury oral instructions in that the verdict sheet does not analogue contain written to comprehensive the one oral instruc tion contained in the oral differently, instructions. Stated there is no language in the verdict sheet that clarify could serve to ambiguous language jury contained therein. All the had refer ambiguous to was the language itself —on the verdict sheet in black and white. response jury
The State’s is that the could hearken back to the one clear oral it allay instruction given any potential ambiguous confusion created verdict sheet. There are two First, argument. difficulties with jury likely is more writing directly refer to the potential it to before resolve attempt confusion rather than to recollect an oral instruction. Second, though even presumed is to consider whatever it *28 charge, remembers from the court’s position the State’s in this jurors’ to recall appeal places faith in the abilities inordinate ambiguity an found details in verbal instruction reconcile stated: sheet. As one commentator verdict jurors cannot answer true-false [S]tudies show[ ] simple that questions frequently given concerning in court. law taken from instructions were they statements of understanding that who never heard the is often little better than of persons Their just suggests that is not one comprehen- instructions at all. This the problem legal jurors or the were not asked rules. for these studies sion, explain apply recognize could recall or instruc- it was a matter whether Bather, simply they tions had heard. they Helping N. Do We Do Now?”: Juries the Apply “What [Christopher May, added).] (1995)(emphasis L.A. L.Bev. 879-80 Instructions, Loy. sheet to Although do not find the instructions on the verdict we se, ambiguous per hold that the verdict sheet’s be erroneous we clearly response to the jury’s the confused wording, coupled with failure of the trial court to special instruction and the verdict error, jury, court clarification for the demonstrates trial obtain cannot consider harmless. which we instruction, by jury’s response, special verdict followed was as follows: aggravating factor then present, found more than one If have you unanimously outweighs itself, factors it, as to each factor whether
indicate a reasonable doubt: beyond (0) (12) Yes Aggravating Factor “a” No (1) (11) Yes Aggravating Factor “b” No (12) (0) “c” Yes Aggravating Factor No jury apparent was to have “indi- The instruction’s intent only specific cate,” identify, special sheet those or on the verdict unanimously By jury had found. aggravating that factors B, jury had aggravating which inserting response factor might it not unanimously, demonstrated found considering prohibited from those it was have understood Moreover, unanimously. find that it did not aggravating factors jurors found that indicating that eleven jury may have been B, outweighed mitigating factors by itself, aggravating factor Accordingly, possibility there is beyond a doubt. reasonable jurors aggravating considered at least some of those eleven *29 balancing process B in factor the that imposition determined the penalty jurors of the If appeal. death this eleven found aggravating factor B enough outweigh mitigat- sufficient to all the itself, ing by jurors factors may one or more of those well have B factor into making taken account when the ultimate decision whether imprisonment defendant would receive life or the death penalty.
Specifically, jury’s responses special the to the verdict First, section of the verdict sheet are troublesome on two levels. interpretation special section, under reasonable verdict its question supports jury’s any the consideration of aggravating factor, regardless of whether unanimously that factor had been found. It suggests jury may that the weights evaluate the relative factor, aggravating alone, of each against mitigat considered the factors, ing long jury unanimously so as the found more than one aggravating present. factor danger question The the posed is that might jurors it to jurors lead believe that could consider an aggravating found, factor an juror individual even if that specific jurors, factor was by not found all long twelve so as the jury found than aggravating more one present. factor
Second, important, and more that danger might have come to jury fruition. special answered question, the verdict indicat- ing might it well have considered the weights relative aggravating factor B and mitigating the jurors’ factors. The possible of aggravating consideration B factor substantiates our supported jurors’ concern the verdict sheet the consideration rejected of a aggravating factor when weighing aggravating the against mitigating factors factors. The verdict sheet and the jury’s responses to it undermine our jury’s confidence verdict guarantee because there is no jurors that the understood they were not to B consider factor in weighing aggravating factors. We cannot jurors be certain that the did or give weight did not aggravating factor B.
Importantly, objected defense counsel to the inclusion of the special question verdict even before judge the trial it submitted objected por- counsel “to last jury. Specifically, defense in the the Court whether is asked to advise tion where aggravating the three it a death verdict one of finds event and of themselves were found factors or two of the three beyond a reasonable outweigh mitigating factors jury to B Perhaps was concerned that subsection defense counsel doubt.” Jury” could portion of the verdict sheet the “Decision factor found encourage jurors rely aggravating on an some *30 had a unanimously. do know is that counsel constitu- What we essentially question special the verdict tional concern because which jury advisory opinion, to could provide the an asked may have been as the for a death sentence. Whatever serve basis objection, emphasized counsel for the defense precise the reason form,” portion of oppose that the verdict strongly “we rather that jurors to question, which asked the referring special the verdict to the aggravating “by outweighed factor itself’ indicate whether mitigating factors. form, counsel jurors completed the verdict defense
After the concerns about to the attention of the trial court his brought also Specifically, question. jurors’ responses special to the verdict the counsel stated: jurors aggravating jurors to eleven B, that with factor
The have indicated respect mitigating outweighed a the factors reasonable beyond it in and of itself found that jury that find reasonable doubt unanimously beyond but the didn’t doubt mitigating in concern been the ease. And the obvious [sic] factor B had proven suggests jurors B who which that eleven voted we have is the extent to that that for though weighing even were not they the process supposed considered it in B that 11 1 considered that no that would indicate because it makes sense they outweighed mitigating that doubt and least from the factors reasonable beyond jurors suggestion these 11 who the that of view I’m troubled extremely by point weighing the that the to decide B used it in process voted improperly for outweigh mitigating aggravating reasonable doubt the beyond factors factors the instruction. contravention to Court’s added.] [Emphasis implicitly, some merit acknowledged, at least The State prosecutor at the trial The stated concerns. assistant defendant’s artfully question may not have been as the appears “it that it The also indicated might it have been.” State framed as object would not if trial the court sent the jury issue back to the of clarification the verdict sheet. trial court that it said thus, thought jury’s it the understood intent and despite the court, State’s invitation to the trial clarify the court refused to the matter. Koskovick, 523, 144,
As we stated
supra,
We find that Koskovich’s admonition to ensure the cor jury rectness of concerning instructions balancing the of aggrava ting mitigating and applies jury factors to verdict sheets as well. Although jury the verdict sheet in appeal might this not have been obviously incorrect, it was ambiguous concerning the crucial una nimity requirement. Moreover, the verdict sheet did not fail law; simply clarify the it ambiguity by suggest exacerbated the ing the of aggravating consideration factors not unanimously Clausell, 345-46, found. 121 N.J. at (noting 580 221 A.2d that Cf. compounded verdict form instructions, confusion created verbal jury at issue correctly instructed on matter though trial court even once). respect in jury’s response confusion Coupled with the —its aggravating factors those permitted it was to consider of whether strong possibility unanimously, the that find as well as it did not aggravating erroneously jurors the considered some of eleven penalty death on defen jury’s imposition in the factor B the The error here. en that there was trial court dant —we find mandates that there reliability required for death sentence hanced whole, a an individual jury as or even little chance that the “be Koskovich, supra, 168 N.J. process.” juror, confused about the is assessing confusing charge, a 144. When at 776 A.2d “‘[wjhere risky stake, is it is too life of an accused at the lay ... to the twelve could mean what the instructions determine ” (quoting State v. A.2d 144 jurors.’ the Id. minds of (1956)). 264, 271, Wynn, 21 N.J. 121 A.2d probabil- Here, suggests possibility, indeed the verdict sheet of them whether eleven ity, jurors were confused about that process. weighing aggravating factor B could consider jurors that were prosecutor recognized possibility Even the Accordingly, trial court should have asked confused. special Because clarify response its to the verdict sheet. so, trial error must find there was court do we court failed to importance jury’s] deci- unique [the “singular here. The sion,” ibid., nothing demands less. courts the event that parties and trial
For the benefit clarification, in the future that call circumstances arise similar juror to in order for each emphasize that a court should trial balancing against it aggravating when weigh specific factor factors, jurors must have found all twelve juror If one doubt. even proven beyond reasonable factor was doubt, juror can beyond no factor reasonable does not find that balancing process. weighing it consider
C trial counsel because defendant’s asserts that State *32 by jury found this object during instructions error the did not analyzed pursuant be “plain Court must to the error” standard. replies attorney object special Defendant that her did the jury, verdict sheet before it was to the submitted and also objected reading completed sheet, upon the verdict and thus the agree “harmful error” standard should utilized. with be We defendant. if
The State maintains that even this Court were to find the explain unanimity that trial court erred in its effort to the requirement jury, to the such an error would be harmless. Be jury C, aggravating cause the indicated it found factors A and themselves, respectively, outweigh mitigating by the factors the jurors rejected might fact that eleven have aggravating considered during B balancing factor aggravating mitigating the the factors was irrelevant. previously
We
have been faced with a similar scenario.
In State
McDougald,
(1990),
v.
jury
120 N.J.
We adhere that decision. A death sentence a jury jury rest on determination did not understand to be essential to its verdict. While the here knew that the conclusion it weighing would reach aggravating after the combined
457 sentence, it determine defendant’s mitigating factors would and its any attached to significance could be unaware that there was Assuming that regarding special the verdict section. conclusions aggravating whether the combined jurors first considered the factors, their essential delibera outweighed mitigating the factors aggravators the they concluded that completed once tions were provided no indica verdict sheet outweighed mitigators. the special to verdict section jurors their the the that answers tion to that any way verdict and the sentence affect in their would they do questions responses to would receive. Juror defendant will to the sentence as essential not understand must satisfy requirement the that a death verdict cannot receive 162, Bey, 112 at supra, N.J. carry reliability. an See enhanced (“Correlative deciding responsibility that [in 887 548 A .2d ‘reliability requirement is of enhanced death] life and the between in a appropriate punishment that death is the in the determination ” 330, 320, ease,’ Mississippi, 472 v. U.S. specific quoting Caldwell (1985)). 2633, 231, 240 86 L.Ed.2d 105 S.Ct. jury case, if the example, for we do not know present
In the
special
of its answers to the
potential significance
understood the
considering
its deliberations
section and exhausted
verdict
(aggravating
apprehension
avoid
purpose to
whether Nelson’s
C)
itself,
by
Nelson
mitigating
evidence
outweighed,
factor
“public
apart from the
servant”
produced, when considered
jurors
make
factors. To
sure
aggravating
murder”
“other
trials,
sentencing
we
capital
responsibility
comprehend their
instructions, a
stated,
providing appropriate
addition to
“[i]n
have
process
compliance
weighing
[the]
with
trial court ensures
jury
conse
sheet that
informs
providing
verdict
jurors to
their
by polling
assure
quences of
its decisions
Bey, supra, 112 N.J.
agreement with the verdict.”
individual
Ramseur,
n.
supra,
We have
that a
decided
determination
is
jury’s
essential to a
verdict should not be
considered
have
*34
reliability
Koedatich,
the
of a final verdict. State v.
118 N.J.
525-27,
(1990) (Koedatich II).
II,
whether the special section, answers the to verdict which superfluous were to its deliberations on appropriate defendant’s sentence, reliability have the of a final verdict. The problem with endorsing jurors may extraneous votes as final verdicts is that lack the motivation to exhaust on deliberations issues are inessential to what, the ultimate it verdict because is if unclear any, consequences juror would A follow. who finds the combined aggravating outweigh and, factors mitigating to the factors there- fore, death, for will reasonably votes not see motivation to deliberating continue to consider a single aggravating whether outweighs factors, factor juror long as as the does special question that the verdict significance understand may have. potential understood the for assurance
Our need question special verdict is of its answers consequences case. Those same facts by the facts of this heightened specific unambigu for consistent and especially also crucial need made instructions, sheet. To including on the verdict ous directions B, prove had factor State prove aggravating in the course of Norcross was committed murder of Officer John prove attempting In Investigator McLaughlin. the murder of phase, argued that the during penalty the State that factor part of one McLaughlin and Norcross were of Officers murders attempting to Simultaneously, the State was action. continuous two mur between the significant there distinction show that was for crime. That justify different sentences each ders that would because, at the time of defendant’s adopted State tactic review, already had been penalty-phase trial under Investigator McLaughlin her for murder sentenced to life end, expert presented trial. To that the State penalty first a twelve- murder followed testimony to show that the Norcross defendant, her which demonstrated “cooling period off’ minute *35 murder. The State wanted the Norcross for “deathworthiness” arguable tension arguments, and the accept jury the both Thus, the fact that theme the trial. them constituted a of between rejecting aggravating argument, juror rejected first one the rejection implied that B, highly because that significant factor is State contentions. accept not both jury as a whole could occurred accept of officer Norcross jury that the murder could McLaughlin. Investigator murder the course Cf 525, (stating Koskovich, 144 that need supra, 776 A .2d 168 N.J. particular because of especially important instruction was clear ease). theme of State’s jury correctly understood that the
Because our confidence sheet by the verdict governing law has undermined been a on we rest sentence jurors’ cannot death responses, and because jury’s special section, answers to we verdict vacate Nel- son’s death sentence.
Ill A Defendant prosecutor’s contends that the in respect comments expert who witnesses testified on behalf of the defense prejudicial constituted error. expected
Prosecutors
vigorous
are
to make a
and forceful
closing
Rose,
argument
jury,
454, 517,
to the
State v.
112 N.J.
(1988),
A.2d 1058
leeway
and are afforded considerable
in that
endeavor,
Smith,
158, 177,
(2001).
State v.
167 N.J.
It is
well-settled
the standard for
upon
reversal based
prosecutorial
requires
misconduct
an
severity
evaluation of the
prejudicial
misconduct and its
effect on
right
the defendant’s
a fair
Papasavvas, supra,
trial.
461 Ramseur, supra, 324, N.J. at 524 law.” 106 the enforcement of A.2d 188. pro prosecutors are principle that recently reaffirmed the
We
unjustified
the defense or
casting
aspersions on
from
hibited
Smith,
177,
supra, 167 N.J. at
In summation, testimony Dr. expert of Gelles during his that the testimony of the State’s that the contrived and Dr. Weiss was Sadoff, “did not consider because he Dr. was credible expert, Specifically, team.” prosecution himself member prosecutor stated: edge a little suggest went over as that testimony, I to heard Gelles, you you Mr. witness, credible witness, very he a very competent bit. For the most part, the lack when about the impulsiveness, moments he talked
but those danger knowledge lurked understanding was a that top there or edge suggest as a member he over those I to went stairs, you defense he the first defense to Nelson’s case. Was to Leslie team this defendant, help help that. witness to do no was he first defense that? No. means By witness do team in this case? of the defense consider a member Weiss, yourself Dr. did you this he is I that. He is an Yes, expert, supposed did. You heard offer job that you assist you very important that mil information, facts, opinions Can he do as a you partisan? to do. he do that he comes have Can before if wearing agenda? same he he’s an Can do that he comes with you if if before jersey Leslie Nelson’s team? the other on people color as *37 logical, [Dr. Weiss’s] Is [sic] that makes testimony sense, reasonable, that’s that’s again, go that it, assists Or is an on his over you? endeavor to the line a part little edge forget over a little bit bit, the because at no time can Dr. Weiss what color jersey wealing on stand, he’s the what team he’s on. Dr. Weiss reaches conclusions, reaches reaches decisions in the opinions, case based in on information to him Nelson, Leslie this part imparted defendant. Is telling in she him interested the truth about what she what did and was in her mind that Or is she interested in successful Is she day? defense? motivated by something seeking explaining than other out and the truth? suggest Now Dr. I to not Sadoff, did consider a member you, the himself team, did not prosecution consider member team. Dr. Sadoff I any himself suggest give honest-to-goodness judgment in came here to his you best you right, a lot And of his opinions. answers, [defense counsel] was a lot his answers were to the defense. helpful added.]
[Emphasis
B
prosecutor’s
The
present
statements
the
ease were
clearly improper. His characterization of Dr. Gelles and Dr.
part
Weiss as
wearing
“defense team” and
the “same color
jersey
people
as the other
on Leslie Nelson’s team” and other
experts’
comments above
testimony
insinuated that the
was con
they
trived and
Further,
had
with
colluded
the defense.
prosecutor’s statements that Dr.
edge
Gelles “went
over
as a
defendant,
member of the defense
help
team to
this
help
Leslie
case”,
Nelson’s
and his characterization of
“parti
Dr. Weiss as a
san”
agenda”
with
clearly
“an
“crossed
that separates
the line
impermissible
Rose,
forceful from
closing argument.”
supra, 112
N.J. at
IV Although we find other errors. claims miscellaneous Defendant merit, questions for the we decide those to be without those claims in the future. may similar issues guidance courts that address of Complaint Exclusion Civil of complaint filed moved to admit a civil sentencing, At Prosecutor, County which against the Camden by Jane Norcross cause the training proximate was a alleged inadequate husband, sentencing The Norcross. John death of her Officer argues that the Defendant now motion. court denied defendant’s complaint prohibit- it refusing the because court erred admit “directly relevant jury with evidence presenting her the ed from also would have mitigator, and inadequate-training [that] factor.” We on the State’s attack recountered disagree. I, supra,
In Nelson we reversed defendant’s death sentence due prosecution complaint to the failure to disclose civil N.J. at A.2d 281. Richard Norcross. 155 There the civil relevant, complaint was admissible evidence defendant could support mitigation support have used to her ease it because lent police inadequately to her contention that the were trained. Id. at 500, A .2d 281. present appeal,
In the
defendant contends that Jane
against
civil complaint
prosecutor
Norcross’
relevant to
was
mitigation
complaint alleged inadequate
her
claim because the
training
proximate
as the
cause of Officer
death.
Norcross’s
However,
Norcross,
unlike Richard
neither a
Jane Norcross was
“key
crime,
day
witness” to
on
the events
of the
nor was she a
compared
officer.
opinion
trained
When
to the
of Richard Nor-
cross,
probative
quite
value of
opinion
Jane Norcross’s
Thus,
opinion
day
low.
because her
of what occurred that
is of
value, we
refusing
little
conclude that the trial
did not
court
err in
complaint.
to admit the
if
Even
the court’s
admit
refusal to
error,
complaint was
error
was harmless because the evidence
substantially
could not have
altered
deliberations.
al
ready had before it
complaint
testimony
Richard Norcross’s
inadequate
from
on
training
police.
Gelles
*39
Defendant also asserts
civil complaint
the
should
impact
have been admitted to counter the victim
statement of Jane
2C:ll-3c(6),
According
Norcross.
may
N.J.S.A
the State
rebut,
of,
weight
counter
or
the
or
defendant’s character
record
However,
presenting
impact testimony.
evidence
victim
“the
State
not
permitted
testimony concerning
will
be
to elicit
the
family
victim’s
opinions
members’ characterizations and
about the
defendant,
crime,
the
or
appropriate
the
sentence.” State v.
Muhammad,
23,
(1996).
47,
145 N.J.
Excusal Juror Cause propriety the trial court’s excusal address the We next penalty views on her anti-death venireperson of a for cause based Over de constituted reversible error. and whether the excusal granted the motion to objection, the court State’s fense counsel’s religious her juror for cause because prospective excuse McCann the Catholic penalty employment with views about the death ability to follow the “substantially impair” her would Church *40 466 fulfill
court’s instructions and
her oath. Defendant
contends
trial
court’s excusal of McCann violated defendant’s due
process rights,
right
impartial jury,
her
to a fair trial
an
subjected
punishment.
support
her to cruel and unusual
In
of her
argument,
emphasizes
during
McCann’s statements
voir
dire that she could
keep
“open
concerning
an
mind”
proper
thought-
sentence for defendant and that she
a
“exhibited
approach
capital sentencing.”
ful
question
we must resolve is whether
trial
court’s
venireperson
decision to excuse the
for cause was an abuse of
Pennington, supra,
588,
119 N.J. at
816;
discretion.
575 A.2d
Ramseur,
supra, 106 N.J. at
260,
524
A trial
A.2d 188.
court’s
juror
determination of
light
bias is to be accorded deference in
ability
juror during
Penning
the court’s
observe
voir dire.
ton,
supra, 588,
Thus,
N.J.
at
In
161 N.J. 737 A.2d
this Court
upheld an
juror
excusal for cause when a
religious
voiced his
respect
penalty,
concerns
of the death
though
even
he believed
penalty
appropriate
the death
if a murder was carried
Harris,
style.”
in State v.
Similarly,
out “execution
156 N.J.
(1998),
In this whether substantially impaired prevented or penalty the death would have question. In juror as a is a close performing her duties her “My religious juror questionnaire, McCann wrote: answering the penalty. My personal beliefs are against the death [sic] beliefs is During depend on the crime.” voir different. I think it should “[sjomeone dire, intentionally taking someone she stated that penalty.” for the death When else’s life I think is a consideration qualify a defendant as asked if crimes other than murder could strong feeling against death-eligible, responded: “I have a she abuse, cons of the again pros I’d have to see the child but However, any “personal if had person involved.” when asked she substantially impair prevent or religious opinions or that would penalty if the facts and circum- imposing from the death [her] it,” justified “[p]robably that [her] law she answered stances and personal beliefs.” When religious would overrule [her] beliefs said, “Well, depends I it on the clarify, stated: like asked to she somebody.” killing With person’s they’ve planned if on —like ease, juror regard particular this stated: just looking thinking doing at that I wasn’t When I was questionnaire, particularly good expressing I’m not real myself, this case. I should but like have, Maybe think in whole I could —in this case I could when I’m nervous. I especially wrong saying I on that I think my I was what said paper. probably like — religious I it was like would override that because don’t feel premeditated, beliefs I think were the events that that don’t day. they planned. happened open to have an mind” further stated that she “would have She the murders if convinced her that about the case trial evidence planned. in fact were premeditation indicate that she did not find
McCann’s views if case, factors, weighing any if she would not consider other even Indeed, required weighing. her answers reveal law such may already the trial court have determined McCann case, namely, had a firm formed conviction about Thus, planned premeditated. murders were not or in view of our dire, during trial deference to the courts voir we are not convinced excusing juror that the trial court erred in for cause. Right Allocution Instruction *42 During penalty phase, attorney the defendant chose to have her jury reading read her statement in allocution to the instead of the jury inquired during statement herself. When the deliberations herself, permitted whether defendant was to read her statement judge, objection, the counsel’s over defense answered that she Specifically, could have the statement. read the trial court stated: Was Leslie allowed to read the statement is, herself? The answer to that impact she is allowed to read the statement herself. she yes, However, impact requested [defense counsel] to do it for her. Now who the reads statement is impact really not a matter which should enter into deliberations or considerations in your any but consider the substance of the from way you statement and aside that the may [sic] manner in how it was shouldn’t concern and presented you really you shouldn’t be a factor in deliberations. your judge compromised Defendant now asserts that trial right way jury’s exercise of her to allocution in the it answered the defendant, question. According to the trial court should not have person- made reference to the fact that defendant could have Instead, ally given the allocution. court respond- should have following: ed with the “The manner in which Miss Nelson’s presented jury statement proce- was to the is a matter of court you dure with which should not be concerned it should not play any part your in deliberations.”
Although
right
to make a statement in allocution is
constitutionally guaranteed,
right
capital
of a
defendant to
233,
firmly
Bey,
allocution has been
established. State v.
161 N.J.
275,
Zola,
(1999);
384, 429-30,
736 A .2d469
v.
112
State
N.J.
548
(1988).
purpose
A.2d 1022
of allocution is to allow a defen-
remorse;
proper
it is a
function of
opportunity
express
dant the
DiFrisco,
jury to
that remorse. State v.
137 N.J.
assess
(1994). Nevertheless,
478-79,
a trial court has
645 A.2d
v.
addressing
relating
issues
to allocution. State
discretion
DiFrisco,
295, 363,
(1996);
supra,
Loftin, 146 N.J.
We jury informed the negatively impacted defendant when the court permitted allocution statement but that defendant was to read her may not to It have that defendant believed chose do so. well been jury personally addressing would not have received eye may conveyed have sympathetic or ear. The instruction person implication present was reluctant to herself responsibility ally, unwilling speak jury accept to the action, something for her or otherwise had to conceal. purpose
A
allocution statement is to allow the
own voice.
express
to hear a defendant
remorse
his or her
DiFrisco,
434, 478,
(1994);
470 Testimony
Inflammatory trial, penalty-phase At defendant’s first defendant made a mo- testimony respect tion in limine in of Detective Richard Joseph scope Norcross and Officer Downs. The court limited the testimony McLaughlin’s of to his observations of shoot- Norcross’s shot, ing, many how times and where he was defendant’s actions him, shooting Investiga- pursuing steps him down the and and McLaughlin’s attempt escape tor on his elbows. The court testimony regarding excluded Norcross’ Norcross’ col- Detective aid, lapse coming hospital, and officers to his his treatment at the wounds, gunshot the number and nature of his and forced his testimony, respect retirement. In Downs’ the court Officer permitted him to discuss his activities outside the Nelson resi- dence, residence, leaving his observation of Norcross Nor- injuries, cover, apparent sought cross’ Norcross defen- time, during dant fired shots the entire and that Norcross was picked up by patrol away car another and taken from the scene. argues now trial Defendant court abused its discretion admitting testimony give in failing a curative instruc- tion. general,
In
a trial court
is afforded “considerable
evidence,”
regarding
latitude
the admission
and is to be re
Feaster,
only if
supra,
versed
the court abused its discretion.
156
trial,
capital sentencing
N.J. at
471 Here, of the objected portion to one defense counsel object testimony not to the remainder. but did aforementioned asked if he only objection after Sack was came Officer Counsel’s he looked out from endangering himself when knew that he was However, trial court sustained because the behind cover. court may the trial objection, not now assert defendant remaining testimony. Defen allowing in its discretion abused failing give a curative erred in to dant also claims that the court acknowledged putting that he was instruction after Officer Sack request curative danger. Because defendant did himself instruction, only constitutes is error if it the lack of instruction error, is, unjust State v. producing an result. plain error 619, 633, (App.Div.1999). A 1074 N.J.Super. 729 .2d Mays, 321 give to an instruction evaluating whether the failure When error, degree to reviewing some of deference “owe[s] court Ibid. Based on strategic decisions[.]” or tactical counsel’s jury would not be reasoning, light of the fact that dangerous to come out it was surprised that Officer Sack believed cover, regarding his the lack of a curative instruction from behind unjust See B. testimony “capable producing an result.” is not 2:10-2. object allegedly of the other
Defendant also did not Thus, testimony. analyze the admission inflammatory we lack of plain standard. Defendant’s testimony error under light of the careful considered objections, particularly when testimony in limine during the motion paid potential attention “clear” claim that errors were colloquy, weighs against defendant’s Indeed, from the failure fair to infer “[i]t [is] or “obvious.” actually the error was object in the context of the trial below that Macon, 325, 333, 273 A.2d moment.” v. N.J. of no State (1971). testimony about which that none of the
We therefore conclude jury’s attention to divert complains was sufficient trial court’s instruction responsibility from its as described leaning in favor of the death anything as consider else to “not *45 aggravating just than sentence other the factor I’ve described and only beyond proven then a reasonable doubt.”
Miscellaneous Prosecutorial Comments that, apart Defendant contends from the in comments discussed III, swpra, portions prosecutor’s Section other summation deprived penalty her of a fair trial and constituted reversible Specifically, argues error. prosecutor defendant that the made (1) that guilty plea statements undercut the value of defendant’s (2) waiver; parole improperly and characterized action (3) heroic; police courageous suggested as and that the must (4) death; purported sentence defendant to represent to legislative capital sentencing intent behind the statute.
Although generally
commenting
limited to
on the evi
drawing
proofs
dence and
from
present
reasonable inferences
ed, prosecutors
permitted
leeway
are
to
considerable
make force
ful,
Chew,
vigorous arguments
30,
in summation. State v.
150 N.J.
(1997).
84,
review,
473 response to coun were made in defense The above statements plea argued that defendant’s during which counsel sel’s summation Thus, prosecutor’s state acceptance responsibility. was an Morton, supra, that context. ments must be considered (stating prosecu must court assess A.2d N.J. trial allegedly comments in context entire prejudicial tor’s prosecutor permissible it to refer holding that was record response sum as “cold-blooded killer” defense to defendant indicated that cohort stoic demeanor mation that defendant’s murder). committed *46 interpre is consider other prosecution
The
allowed to
it than the
plea and show less reverence to
tations of defendant’s
claims,
if the
prosecutor may respond
A
to defense
even
defense.
Morton, supra,
the
case.
response tends to undermine
defense
the
improper
228. “It
is not
for
at
715 A.2d
155 N.J.
imba
presentation
the
was
prosecution
suggest
that
defense’s
supra, 161
Timmendequas,
N.J.
incomplete.”
lanced
fact,
entirely
prosecutor
the
to ask
proper
In
it is
for
Here, regarding statements defendant’s prosecutor’s the Further, prosecutor’s the permissible. plea agreement were parole “ma characterizing of as no defendant’s waiver statements of error in view prejudicial result jor concession” did not that “was in his summation defendant counsel’s statement defense anyway.” In years parole obviously looking at 65 without event, jury found the harm because the no resulted acceptance responsibility. factor of objects prosecutor’s characteriza also to the
Defendant However, courageous as and heroic. police the officers tion of in her squarely in issue put conduct officers the police the defense that mitigation case. The thrust her inadequate training foolhardy and their inept were on example, For triggered to or defendant’s actions. contributed direct-examination, Dr. Gelles police testified that the had not properly assessed the threat verbally communicated and behavior- ally by Gelles, defendant. According to Dr. the officers failed to appreciate significance prior defendant’s arrest and failed to interpret larger danger embodied defendant’s suicide threat. prosecutor’s merely statements were an alternate characterization in rebuttal of argument defendant’s police inadequately were trained.
Defendant further asserts that prosecutor implied jurors must sentence defendant they death or would betray otherwise Contrary their oaths. to defendant’s conten tions, however, point at no in the prosecutor summation did the urge jury Rather, deliver a death sentence. he asked the jurors to deliberate to reach their verdict it impor because was tant, outcome, and whatever the it justice.” would be the “ultimate arguments
Defendant’s in respect of prosecutor’s comments about the “murder within the aggra course óf murder” vating factor and the police murder of the officer aggravating factor similarly are prosecutor meritless. The is argue entitled to weight to be accorded an aggravating any event, factor. In did not approve unanimously the “murder within the course of murder” aggravating factor. *47 reject
We also defendant’s contention prosecutor that the improperly invoked the intent of Legislature. Defendant wrongly assumes prosecutor that the right had argue no that a death sentence appropriate. Indeed, prosecutor because a may argue that a death sentence appropriate, is clearly he may insinuate as much.
Finally, it was not error prosecutor for the to inform the jury public granted servants are protections, additional be cause this information merely reiterates the murder police of a officer aggravating factor.
Change Venue of County, but place Camden first trial took Defendant’s County foreign jury from Mercer impanel a agreed to parties Before publicity. pretrial of significant amount a result of a as change trial, of moved for sentencing her second type of the amount and County because of Burlington venue to of the and the reversal first trial generated her publicity motion. defendant’s trial denied imposed. The sentence court prejudicial court committed that the trial now asserts Defendant error. the trial change venue where requires a of
Rule 3:14-2
otherwise be
trial cannot
impartial
a fair and
“finds that
court
(1983),
Williams,
39, 61,
we
publicity
making
actual effect of
issue the
the determinative
intrusive,
less
extensive,
while
is
panel.
on the
the publicity
impartiality
omitted).]
(citations
[Biegenwald,
at
524 A.2d
106 N.J.
supra,
“relatively
are
presumed
is
prejudice
in which
Cases
Koeda
circumstances.”
extreme
out of the most
and arise
rare
“Presumptively
A.2d 939.
tich,
112 N.J. at
supra,
that creates
publicity
a “torrent
publicity” means
prejudicial
inflammatory reporting
barrage
“a
setting” or
carnival-like
that would
following: evidence
include all of the
may
but need
guilt or inno
trial,
opinions on
at the
editorial
inadmissible
be
of a
on the death-worthiness
cence,
pronouncements
media
143, 147-48,
conducting supra, dire. In forth a we set non- list of determining exhaustive factors to be considered in whether presumed prejudice exists: (1) against of extreme evidence community hostility defendant; (2) of either the victim or defendant within the prominence community; (3) coverage; the nature and extent of news (4) the size of community; (5) gravity offense; the nature of the
(6)
coverage
of the news
to the trial.
temporal proximity
[112
282-84,
939.]
N.J. at
548 A.2d
An example
presumed
of
prejudiced is
illustrated
Rideau v.
Louisiana,
723,
1417,
(1963)
373 U.S.
83 S.Ct.
this
case
trial before a
drawn from a
of
who
required
had
community
people
not seen and heal’d Rideau’s
‘interview.’
televised
‘Due
of law,
process
preserved
for all
our
Constitution, commands
no such
by
as
disclosed
practice
this record shall send
accused to his death.’
any
(1963)
[373
(quoting
U.S. 723, 727,
1417, 1420,
373
83 S.Ct.
10
666
L.Ed.2d 663,
L.Ed,
v. Florida,
227, 241,
Chambers
309 U.S.
60
84
472,
S.Ct
724
716,
(1940)).]
If prejudice
presumed,
is not
a court must evaluate
totality
whether under the
jury process
of circumstances “the
jury”
resulted in a fair and impartial
if a change
determine
necessary
venue is
to overcome the
preju
realistic
likelihood
Koedatich,
(citation
supra,
dice.
Also,
eligible
pool
jurors
large
of
enough
protect
rights
defendant’s
and the trial court allowed.the excusal for cause
jurors
previous
who were
aware
defendant’s
Al
sentence.
jurors
though
impartial, they
must
ignorant
be
“need not be
juror
facts
the case----‘It
is sufficient if
lay
can
aside his
impression
opinion
[or her]
or
render
verdict
on
based
” Koedatich,
presented
evidence
in court.’
supra,
N.J.
(quoting
Sugar,
In balancing the Koedatich the absence of evidence of community hostility, extreme County the size of the Camden pool, and passage of time since of coverage most the news in weigh favor of position. the State’s Although prominence of her victims and the nature of may weigh the crime position change venue, favor of defendant’s the factors in outweigh favor the State them. Those not factors do create the setting” necessary “carnival-like presumed the existence of Harris, prejudice. supra, 156 N.J. at 716A.2d 458.
V Defendant also contends that her execution for crime that is intertwined with her mental illness our violates State Constitution. Because we reverse death defendant’s sentence for the reasons set supra, forth Part II the Court need not question. reach that
VI Defendant’s pro claims raised in her se brief are without merit do warrant discussion. life sentence for the murder of McLaughlin Officer John remains force. Defendant’s death sentence for the murder of is the matter remanded set aside and Officer John Norcross is opinion. with proceedings consistent this trial court for Jersey Superior New Court of County Law Division —Camden Criminal 1-1468-06-95 : OF NEW JERSEY STATE SHEET VERDICT : vs. : ANN NELSON LESLIE : Defendant. FACTORS
1. AGGRAVATING beyond doubt that unanimously a reasonable you find Do exist: following aggravating factors No Yes X and 'Tes” votes] “No” number [Indicate for the Norcross was committed murder of John a. The trial, detection, punishment apprehension, escaping
purpose of defendant, by the committed for another offense or confinement of an possession assault being the unlawful the other offense firearm. #Yes #No (12) (0) *51 committed while Norcross was The murder of John b. of John commission of the murder engaged in the defendant McLaughlin # Yes # No (ID (1) engaged in the public servant Norcross was c. John the murder occurred. his duties when of official performance #Yes #No (12) (0) you If have found that of aggravating none factors were present, complete is punishment deliberation and the be imprisonment shall possibility for life without the of parole. you If have unanimously found aggrava- that one or more ting present, go factors were to number “2” below 2. MITIGATING FACTORS you anyDo of find that of following mitigating exist as factors: (You should note that is no proof there burden of as to They only factors. need be established reliable Unanimity required) evidence. is not pled a. Ms. guilty Nelson accepted and has responsibility for her actions. #No #Yes (0) (12) b. Ms. given up Nelson has right her under the law to be eligible parole years after 30 for the murder John Nor agreed cross and accept has a sentence of life without the possibility parole in the event she is not sentenced to death.
# No # Yes (0) (12) c. Ms. significant Nelson had no history of violent behavior at the time the murders.
# No # Yes (12) (0) d. Ms. Nelson has no significant history of criminal activi- ty.
#No #Yes (12) (0) e. Ms. Nelson’s conduct was not the planning result of or premeditation.
# No # Yes (12) (0) *52 history illness or long of mental f. Nelson has a Ms. her conduct on the problems contributed to psychological day of murders. # Yes # No (ID (1) psychiatric make-up made psychological or g. Nelson’s Ms. judgment and loss an emotional breakdown susceptible to her day on of the murders. and reason # Yes No# (8) (4) pro- support guidance inadequate training, h. The and/or involved in the events of by officers the law enforcement vided leading to the circumstances April 1995 contributed murders. # Yes
# No (4) (8) part triggered actions were i. Ms. Nelson’s of law enforcement. conduct # Yes # No (4) (8) prison j. making positive contribution Ms. Nelson is educational her the institution’s through participation life to other inmates. program legal her assistance # Yes No# (12) (0) for most of her employed gainfully k. Ms. Nelson adult life. #Yes
#No (0) (12) defendant’s is relevant Any l. factor which other of the offense. circumstances or or to the character record NO *53 (l) mitigating alleged [Each factor under should be listed separately] jury Decision of the one, one, only Indicate below choice which is the decision jury. Please appropriate check the box. jury unanimously a. The is aggravating satisfied proven or outweigh factor factors to exist beyond fail reasonable mitigating doubt the factor or punish- factors. The shall imprisonment ment parole. be possibility for life without the jury unanimously beyond b. The is satisfied a reasonable any aggravating doubt factor proven or factors to exist outweigh mitigating factor or judge factors. The will sen- tence defendant to death.
X you unanimously If have found more than aggravating one present, it, factor then indicate as to by each factor whether itself, outweighs mitigating beyond factors a reasonable doubt: (0) Aggravating (12) Factor “a” No Yes (1) Aggravating (11) Factor “b” No Yes (0) Aggravating (12) Factor “c” No Yes e. jury After due deliberation the unanimously cannot agree upon punishment. punishment shall be imprison- ment life possibility parole. without the Foreperson ZAZZKL1, J., concurring.
In above, addition to the reasons set forth there is an additional and compelling justification for executing Leslie Nelson. I separately. therefore write that are her execution for crimes
I defendant that agree with our State Consti- inextricably to her mental illness violates bound purport- legitimate penological interests that tution. The State’s unconstitutionally dimin- edly penalty the death are are served psychologically ill mentally if the State executes such a ished case, constitutionally inade- person. In it is disturbed defendant’s merely illness mental as quate for a consider her severe weighed aggravating and among other factor be mitigating factors. prohibit cruel and the federal and state Constitutions Both Const, Const, VIII; N.J. art. punishment.
unusual
U.S.
amend.
¶I,
interpretation,
prohibition a “vital”
give
To
the federal
12.
*54
“may
has
that
it
be ...
Supreme Court
stated
United States
obsolete,
acquire
may
but
is
to the
progressive, and
not fastened
by
enlightened
a humane
meaning
public opinion
as
becomes
States,
349, 378,
544,
217
30 S.Ct.
justice.”
v. United
U.S.
Weems
(1910). Thus,
553,
793,
Supreme Court has held
L.Ed.
54
803
meaning
“must
its
from the
Eighth
draw
Amendment
decency
progress
of a matur
evolving
of
that mark
standards
Dulles,
590, 598,
86, 101,
2
Trop
78 S.Ct.
ing society.”
v.
356 U.S.
630,
(1958).
principles
same
Our Court follows the
L.Ed.2d
642
prohibition against cruel and unusual
interpreting our State’s
171,
Ramseur,
524 A.2d
supra,
Contemporary Standards assessing prong, In the first contemporary whether standards permit mentally of person, execution such disturbed we look Ramseur, objective supra, indicators those standards. N.J. held, endorse, A.2d 188. haveWe and continue to acts Legislature of the are strongest “[o]ne indicators” of contemporary Ibid. The sentiments implied standards. acts Legislature provide “presumptive Jersey evidence” of New citizens’ on permissible impermissible punishments. views Ibid. Jersey’s statute, penalty 2C:ll-3,
New N.J.S.A. death suggests contemporary might permit standards the execution severely mentally person. ill provision specifying the statuto- ry aggravating mitigating factors Legisla- indicates that the legally ture finds it penalty-phase jury sufficient for the or court capital possible consider defendant’s mental defects and factor, which, mitigating illnesses as a along with other factors, may outweighed by be aggravating factors under certain 2C:ll-3c(5)(d)(5d). circumstances. N.J.S.A. 5d allows the sentenc- er to consider whether a capacity appreciate “defendant’s wrongfulness of [or his her] conduct or conform his [or her] *55 requirements conduct to the of significantly the law impaired was intoxication, as the result of mental disease or defect or but degree a sufficient to a Ibid. prosecution.” constitute defense to if sentencing body Even the finds support credible evidence to the factor, statutory 5d permits imposition scheme of the death penalty provided mentally defective defendant’s act of murder sufficiently aggravated.
Although capital murder strong statute’s scheme is a indica community standards, not, itself, tion of it does settle the issue. Ramseur, supra, 172, 106 N.J. at See 524 (stating A.2d 188
485 dispositive” in assess- penalty statute “cannot be passage of death interpre- constitutionality an penalty “[s]uch of death because ing on unusual ban cruel and tation render the constitutional would a limita- tautology, eliminating its function as punishments a mere legislative Although Legislature’s enact- power”). tion on standards, contemporary of other provide strong evidence ments Ibid, statutory (stating that are also relevant. considerations contemporary stan- “presumptive” evidence of provide enactments dards). matter, objective are respect present In there growing that reflect con- contemporary indicators of standards mentally of cern the execution disturbed. about of, and society increased awareness Our has demonstrated mentally to, ill. sensitivity facing Apart from problems verdicts, although jury not conclu experience, common trends sive, sensitivity. Rehnquist, heightened Chief Justice reflect that Virginia, v. dissent in Atkins stated: his sentencing recognized concerning the actions of Our have also data opinions “ judgments, significant though weight legislative
juries,
less
than
‘is
entitled to
”
Georgia, 433
97
584, 596,
Coker v.
U.S.
values,’
and reliable index
contemporary
(1977)
opinion) (quoting Gregg,
(plurality
at 181,
2861,
L.Ed.2d 982
supra,
S.Ct.
53
2909),
jury’s
in the case and its
intimate involvement
96 S.Ct.
because
“ “maintainCing]
and the
a link
values
contemporary community
function of
between
(quoting
Gregg,
2909
v.
181,
Witherspoon
96 S.Ct.
penal system,’”
supra,
(1968)).
n.
S.Ct.
reasoning doing.1 about what are From when the penalty 1989, Jersey, through juries death was reinstated in New capital sentenced to death 17.4% finding of defendants after support to mitigating During evidence the 5d factor. period, juries to sentenced death 29.8% of all at capital defendants sentencing capital trials and sentenced 39.7% of defendants when was not 5d found. From to jury-imposed the rate of overall, death verdicts increased 31.3% and to 42.6% defen However, dants when 5d was not found. period that same time juries the mitigating only that found 5d factor sentenced of 7.7% those defendants to death.2 Importantly, the overall rate death increased, sentences sentencing but the rate of 5d defendants decreased more than half.
Moreover, (AOC) the Administrative Office of the Courts evalu ates the evidence that presented would have been at trial for death-eligible defendants are who sentenced to life without a case, penalty phase. For each judgment settled the AOC makes a regarding aggravating what and mitigating factors would have by jurors been found penalty if a trial had been conducted. From 1990 to the AOC found support mitigating credible for the 5d regard factor with capital one-hundred sixteen defendants who penalty received a life sentence without trial. When added capital sentencing juries defendants for whom have found the factor, mitigating 5d forty-one there have been one-hundred 5d capital including defendants since only defendant: one those forty-one one-hundred defendants has received the death stated, penalty. rely As precise defendant did not on wording Rather, submitted, 5d factor. she and eleven found, jurors long history that she “ha[d] of mental or illness psychological problems that to her contributed conduct.” In percentages in this section were reported calculated based on the data Courts, Administrative Office provided by Criminal Division, Practice its from review database. The data proportionality was last in 2001. updated 2 This calculation includes Nelson aas defendant who received death after jury found 5d. *57 psychological or addition, jurors eight found that “defendant’s susceptible to an emotional break make-up made her psychiatric Thus, including judgment and defen loss of reason.” down and of yields two one-hundred group in the of 5d defendants dant received death forty-two capital 5d defendants who have words, significant only In 1.4% of the other penalty since 1990. past in the death capital of defendants have received pool 5d years.3 twelve sought penalty signifi at a prosecutors the death
Notably, have present evidence cantly rate for defendants who can decreased 1989, From 1983 to there factor. support of 5d successfully pre capital who either eighty-two defendants were trial, or, they go if not to jurors 5d to did of sented evidence successfully presented 5d they that could have AOC determined penalty for 46 of those 82 sought the death Prosecutors evidence. defendants, of defendants. From reflecting a rate of 56.1% 5d prosecutors sought the death to rate at which 1990 (twenty-six of to out all defendants decreased 18.3% penalty for 5d defendant). defendants, including forty-two capital 5d one-hundred sought penalty for the death During period, prosecutors same present or demon who either did not capital of defendants 29.3% trial, or, they jury go to if to who mitigator a did strate the 5d successfully presented evi could not have the AOC determined support of 5d.4 dence in require conclusion syllogisms that jury are not trends State, they do this penalty is disfavor but
that the death community subjecting to evolving in our suggest an aversion Although to execution. mental disease or defects defendants with including 3 defendants, who did not 5d those to 9.8% of all From 1983 go death sentence. trial, to received a sought for During the death 1980's, penalty the rate at which prosecutors sought slightly higher the death than rate which they 5d defendants (56.1% 54.2%). stated, from As defendants versus for non-5d capital penalty sought 5d at which punishment the rate capital prosecutors 29.3%). (18.3% versus than the rate for non-5d defendants was lower defendants message might statistics not be sufficient to show majority Jersey of New citizens oppose the execution severely mentally person ill intricately whose actions are connect- illness, toed her mental it is nonetheless clear that contemporary evolving standards are with an compassion increased for those with mental illness.
Penological Objectives
Against
background
evolving
standards,
contemporary
prong
the third
may
constitutional test
now be considered—
necessary
whether the execution of defendant is
accomplish
legitimate penological objective.
penalty
“The death
is
said
principal
serve two
purposes:
social
retribution and deterrence of
*58
capital
by prospective
crimes
Gregg,
offenders.”
supra, 428 U.S.
183,
2929-30,
at
I believe that
penalty
the death
is unconstitutional as applied to
defendant because it would exceed
necessary
what is
to accomplish
either retribution or deterrence. The retributive value to be
gained from her execution
unacceptably
by
is
reduced
“her bizarre
psychological derangement
profound
and
emotional disturbance.”
Nelson,
supra,
(Handler, J.,
Retribution doI not conclude that the death penalty is unconstitutional as applied to all capital diagnosed defendants with some mental held Supreme Court has or disorder. The United States illness mentally violates retarded defendants that the execution Constitution; similarly respect held some state courts have I am A.2d at 41. See their state constitutions. infra men regard with to the analogous prohibition an suggesting “[mjental recognized, Supreme As Court tally ill. the Tennessee retardation, definition, by on accompanied serious limitations is behavior; is adaptive mental illness not.” Van intelligence and (Tenn.2001). However, State, defen v. 66 S.W.3d Tran and connec problems, their psychological mental illness and dant’s her police, to the demonstrate tion to her violent reaction to As dis justify diminished her execution. capacities were too cussed, emotionally throughout child her defendant was disturbed years. was mentally ill in and adult She and her adolescence hood invol suicide. She with and threatened commit obsessed facility eventually under untarily psychiatric committed to a Defendant, significant no who had change operation. went a sex mother, life, except her relationships in her with interpersonal relationships, interpersonal forging no interest who showed diagnoses, that she wanted according psychiatric stated her dancer, an exotic reassignment surgery to become undergo sex years actress, or Defendant obsessed prostitute. film adult human change surgery to seek through sex going radical about forms, social eschewing any other form of despite contact these relationship. *59 way background of
By reas- psychological underwent sexual basis, in sufBeient [without genitalia constructing genitalia surgery removing signment male and female her — being her with an outcast and to redress social problems in its an attempt place —in undergo surgery a remedial as response Unlike most who a loner. people transsex- conditions of have the clinically defendant did not transexuality, accepted a truly sense that she was not harbor the unshakeable ualism. She did persistent, though a woman “trapped” was male —that she was even she female physically reconcile a woman order to not want to become a man’s Defendant did body. gender gender. psychological with her her physical (Handler, concurring and J., 715 281 155 N.J. at A.2d [Nelson, supra, dissenting).] 490
Indeed, expert ill being mentally defense testified that calls question pursues into surgery. reasons one that kind of co-workers, family Ridiculed of her depres members and her deepened. sion expert opinions depart The at trial offered did not diagnoses from the included in Nelson’s mental health records. consistently dysthymia5 Nelson was diagnosed with long —a standing depression, major which Dr. Weiss opined depres sion at the time of the with murders —as well traits from been previously diagnosed post-traumatic with stress disorder6 and withdrawal, delusions, with of problems social paranoia, and schiz 7oid personality and borderline8 disorders. She also anxiety. had 5 Dysthymic chronically depressed "The essential feature of Disorder is mood day days years," that occurs for most of the more than for at least 2 and symptoms, possibly including poor appetite, energy, there other are low low self- esteem, hypersomnia, feelings hopelessness. insomnia or and of DSM-IV at 345. following (1) post-traumatic respond- are the criteria for stress disorder: fear, ing helpless, harm, physical with intense or horror to threatened or actual (2) persistently reexperiencing (3) specified ways, in or of event more certain stimuli, persistent (4) persistent symptoms avoidance of associated and of in- arousal, difficulty sleeping, irritability anger, creased such as of or outbursts difficulty concentrating, exaggerated responses. and/or startle Id. at 427-28. Personality pervasive pattern "The essential feature of Schizoid Disorder ais relationships range of expression detachment from and social a restricted of of interpersonal settings. pattern begins by early emotions in This childhood and is present variety in a Personality of contexts." at Id. 638. Schizoid Disorder: stress, "Particularly response experience may individuals with this disorder very psychotic episodes hours). instances, (lasting brief minutes to In some Personality may appear premorbid Schizoid Disorder as the antecedent of Schizophrenia. may Delusional Disorder or Individuals with this disorder Major develop Depressive sometimes Disorder.” Id. 639. Personality pervasive "The essential feature of Borderline Disorder is a pattern instability affects, interpersonal self-image, relationships, and and impulsivity beings by early marked present variety childhood and is in a Multiple symptoms necessary, may contexts." Id. at 650. are include the (1) following: identity markedly persistently disturbance: unstable self- self; image (2) impulsivity or sense of in at least two areas that are self- (3) behavior; damaging; (4) (4) instability; recurrent suicidal affective chronic *60 severely depressed could suggested that she become Evaluations enough injure to others. view, actions, although cer- police
In officers’ defendant’s all found mean- tainly justified, the loss of that she threatened to and everything was her immature ingful and essential self, namely, guns and her womanhood. sense of her unstable objects she knew the officers would confiscate Defendant children, prison. sent to and that she would be treated like her murders, at the psychiatric experts agreed that time major depression.” “suffering episode from an of was history of mental agreed long her psychiatrist The defense on her condition problems contributed to psychological illness and psycho- agreed He also that defendant’s day of murders. to susceptible her an emo- makeup made logical psychiatric and day on the of judgment and reason breakdown loss tional murders, point of suicide much was at the so so that defendant Sadoff, expert, Dr. testified day. Importantly, the State’s on that appearance as depression, her with her obsession that defendant’s seriously woman, guns attachment her and her bizarre judgments: “[Defendant] ability to make reasoned affected her her judgment at the time because of an her impairment had condition, partial breakdown made more vulnerable which her average person.” than impairment judgment of her more anor “ability clearly think defendant’s Dr. Sadoff added that He anxiety depression.” both her her impaired part] [in she prison, could that defendant’s fear where acknowledged controlling (8) anger feelings difficulty intense or of emptiness; inappropriate, (5) anger; ideation. Id. at 654. transient, stress-related paranoid "Some individuals develop psychotic-like Disorder: Personality Borderline body-image reference, and (e.g., distortions, ideas of hallucinations, symptoms during hypnagogic with this disorder phenomena) times of stress. Individuals (i.e., objects or inanimate feel secure with transitional pen more may death from suicide possession) Premature than in relationships. interpersonal co-occurring with disorder, this those occur individuals with especially may or Substance-Related disorders,] which Disorders!, Mood include depressive at 652. Disorders." Id. *61 appearance maintain guns, her as a woman and contact with her “was beyond anyone above and the normal fear that would of have going jail because of expert her condition.” Defendant’s agreed, testifying that only objects threatened loss of the connected to defendant’s sense of self resulted a “break down ability her feelings.” to reason and control her Although “pathetic these present picture,” facts indeed Nel son, (Handler supra, J., 155 at A. concurring N.J. 715 2d 281 dissenting), may help explain conduct, & and they defendant’s crimes, do not her excuse heinous punished. which she must be stating gained In that the executing retributive value to from be low, defendant unacceptably is is responsi defendant nonetheless culpable and ble for the murders she committed. The State’s expert denied that experienced a total breakdown in her ability to make judgments, reasoned but that conclusion'is consis -with insanity. tent lack defendant’s of plead Defendant did not and could not successfully have insanity maintained an defense. said, agreed defendant, That experts least, both at the “had impairment an of judgment her at the time because of her condition, which made her to partial more vulnerable breakdown impairment or an judgment of her average more than the person.” testimony The expert of those implies 'witnesses that there is a spectrum judgment of abilities in and reason between the com- plete inability of unimpaired the insane to the functioning of the fully culpable. differently, responsibility Stated “moral is a con- concept.” Morse, tinuum Stephen J. “Excusing and the New Legal Excuse Defenses: Conceptual Review,” A and 23 Crime & (1998). Just. 397 along large among is [Rationality distributed a continuum in the at and population Depending who from suffer mental on people disorders. type severity signs disorder and its various mental symptoms, disorders affect rationali- may varying degrees. legal ty If is the touchstone of rationality responsibility, along legal is also might distributed responsibility a continuum and accountability adjusted accordingly. degrees be In therefore, there are principle, partial
responsibility____ (1999).] J. J. Contemp. [Stephen Morse, 10 Issues “Crazy Reasons,” Executions, indignation, cannot expression our most extreme irrationalities were exacer be carried out on defendant whose to such as to time of her criminal acts an extent bated at the capital If fully culpable. our that she is undermine confidence constitutional, those it be reserved for defen punishment is must fully culpable, so that the capacities allow them to be dants whose Atkins, In its intended retributive value. penalty death can exact penalty must supra, Supreme reiterated that death Court — at-, deserving.” the “most U.S. S.Ct. be reserved for 2251, 153 the crimes of L.Ed. 2d stated that at-. Court to death must “reflect a consciousness a defendant sentenced guilty of person than that of materially ‘depraved’ more ” Ibid, 420, 433, Godfrey Georgia, 446 *62 (quoting v. U.S. murder.’ (1980)). 1759, 1767, 398, L.Ed.2d 409 The Court 100 64 S.Ct. average is culpability “If the murderer insuffi continued: State, justify the extreme available to cient to most sanction surely does culpability mentally retarded offender the lesser of similarly, if I for that form of retribution.” Ibid. reason not merit average is insufficient to invoke of murderer culpability sanction, penalty most extreme then lesser the death as our Nelson, history illness and its culpability given her of mental of crimes, “surely not that form of her does merit connection to retribution.” Ibid.
Deterrence significant any of would not achieve execution effect, or of applied future behavior to her deterrent whether in similar circumstances. others deterrence” —that [T]he involves the notion of “individual of deterrence concept repeating his acts. v. offender criminal State will dissuade the from
punishment
(1960).
“general
of
162
It also includes the
Ivan,
197,
N.J.
A.2d 851
principle
33
“discourage
wrongdoing
similar
others
by
can
deterrence” —that punishment
grim
warnings
through
consequence
law’s
are real
that the
a reminder that the
v.
[certain crimes].” United States
of
is
to follow from
[punishment]
likely
(S.D.N.Y.1976);
Bergman,
v.
118 N.H.
Wentworth,
832,
State
499
F.Supp.
(1978).
395 A.2d
(1982).]
The State’s Concern argues The State finding that penalty death unconstitutional as applied Leslie Nelson would involve re-weighing the Court’s of all aggravating mitigating However, factors. it is defen- rationality dant’s diminished and culpability constitutionally that
495 reweighing of the not based on My view is her execution. bar rather, factors, on a but totality aggravating of is death sentences carrying out interest the State’s belief of her because this defendant execution of by the not satisfied aggravating weight of the regardless of culpability, lessened factors. by other courts to decisions analogous approach is
This for defen punishment unconstitutional is an that execution hold fully than them less capacities render reasoning whose dants — at-, Atkins, supra, U.S. crimes. See culpable for their at-(the Eighth Amendment 2252, L.Ed.2d at 153 122 S.Ct. Thompson v. mentally persons); retarded of prohibits execution 702, 2687, 2700, 101 838, 108 L.Ed.2d Oklahoma, S.Ct. 487 815 U.S. execu (1988) prohibits Eighth Amendment (finding that the 720 turning years sixteen offense before committed person of who tion Tran, at 792 old) supra, 66 S.W.3d opinion); Van (plurality violates Ten mentally person retarded of (holding that execution 687, Zant, Constitution); 386 S.E.2d Fleming v. 259 Ga. nessee mentally (Ga.1989) retarded 339, (stating that execution 342 Constitution); Lynaugh, Penry v. see also Georgia person violates (1989) 256, 2958, 106 302, 341, L.Ed.2d 109 S.Ct. 492 U.S. Eighth (arguing that (Brennan, J., dissenting) concurring and persons), mentally retarded prohibits execution Amendment — -, Atkins, 122 S.Ct. supra, U.S. abrogated by Koskovich, 776 A.2d at 335; supra, 168 N.J. L.Ed.2d “young age, J., (observing that defendant’s (Zazzali, concurring) development, his emotional of his stunted in the context viewed crime,” time of the childhood, at the and his condition traumatic Constitution). noted, the As Jersey New under raises concerns Eighth that the recently decided Supreme Court States United bars punishment unusual of cruel and prohibition Amendment’s of their “Because mentally retarded defendants. the execution their control of judgment, and reasoning, in areas of disabilities culpability moral level of act with the they ... do not impulses, Atkins, supra, adult conduct.” the most serious characterizes — 2244, 153 at-. L.Ed.2d at-, 122 S.Ct. U.S.
496 imply
Those decisions some instances a defendant’s reasoning may or cognitive capacities weighing diminished bar the aggravating of factors because the defendant’s itself, by culpability, diminished removes possible execution as a However, punishment. my position from holdings is distinct death-eligibility of other courts because it addresses the our under defendant, only opposed of State Constitution one as to a class of My approach specific defendants. is to Nelson and on her based specific set psychological problems during of and her condition crimes, fully circumstances of her all of which is documented in proof the record. If there was not of substantial serious mental illness, my might view of this general issue be different. As a rule, I believe that substantial of documentation mental illness is necessary support a defendant’s claim in such circumstances. expectation allay That should of concerns those who would expressed contend that view open here would an create may sesame defendants who now seek to manufacture claims of mental illness.
Considering
illness,
partial
defendant’s mental
evidenced
her
judgment,
breakdown of reason and
merely mitigating
as
factor
adequately satisfy
does not
paragraph
the concerns of article
of
Jersey
the New
I
Constitution.
share Justice Brennan’s view
impaired capacities
where defendant’s
render the defendant
culpable
actions, balancing
less
for his or her
that defendant’s
problems against
mental
satisfy
other factors
does
constitu-
Penry,
supra,
tional concerns.
want
The sentencer
is free to
responsibility.
retarded
mentally
against
offender’s
relative lack
heinousness
the crime and other
culpability
*65
aggravating
of
that even the most retarded and irresponsible
factors and to decide
offenders should die.
at the
a
of mental retardation is
not isolated
Lack of
as
result
simply
culpability
sentencing stage
sentence;
a death
as a factor
that
bars
determinatively
sentencing
designed
is not
to ensure that mentally
individualized consideration at
degree
to death if
are not
to the
they
retarded offenders are
sentenced
culpable
crimes.
to render execution a
to their
necessary
proportionate response
at
In person seriously depressed depicts a disturbed and defendant throughout her life. from serious mental illness who has suffered with her person thoroughly obsessed experts described like her guns, which she viewed as a female and with her status the extent of defen- Tragically unaware of surrogate children. psychological problems, police, carrying dant’s out their duties, things ability threatened both defendant valued most: her appearance possession to maintain her as a woman and her guns. experts agreed experienced Both that defendant at least an ability impaired to use judgment reason and because of the impending loss of all meaningful that she found to her life. impaired resulting Nelson’s long history state from her of mental psychological problems, illness and and its close connection her .to police day, bizarre and violent reaction to the undermine our fully culpable. confidence that she is legitimate The State’s penological executing interests in adequate defendant are not satisfy the concerns of our prohibition against State Constitution’s punishment. cruel and unusual *66 joins Justice in opinion. LONG this LaVECCHIA, J., concurring, part, dissenting, in in part. I judgment concur in the of the Court that reverses defendant’s death sentence based on error in handling the trial court’s ambiguity in the verdict sheet. Because I do not view alleged reversal, other trial errors to constitute a basis for I join cannot in majority’s Section III of holding. majority improper declares prosecutor’s references to (Dr. Weiss) expert
one witness of “partisan,” as and as “wearing jersey the same color people as the other on Leslie team,” referring Nelson’s expert to another defense witness (Dr. Gelles) “[going] as edge over the a little bit.” Those com- ments are amounting prosecutorial viewed as misconduct that so exceeded the propriety bounds of that defendant was a denied penalty fair case, trial. Because this is capital majority gives the benefit of the Arguably doubt to capital defendant. setting of this matter will applications circumscribe future majority’s approach restrictive to an advocate’s fair comment on clearly said, matters in the record. That I respectfully dissent. Although generally commenting limited to on the evidence and drawing supported reasonable proofs, inferences proseeu-
499
expected
tors are
powerful arguments
to “make
in summations to
jury ----
are
leeway
[and]
thus afforded
in
considerable
Koskovich,
making closing arguments.”
448, 489,
State v.
168 N.J.
(2001)
Chew,
30, 84,
to conduct himself in a manner
to a lecture hall. He is entitled to
appropriate
be
graphic
jury,
long
forceful and
in his summation to the
so
as he confines himself to
fair comments on the evidence presented.
(1974)
(citations
(Clifford,
dissenting)
[
You considered when wrote the of a defense team yourself you report part right? matter; connection with this is that response question, In to that Dr. Weiss answered ‘Yes.” There trial; moreover, objection question and at was no to this answer testimony Dr. in defendant’s counsel referred to Weiss’s “team” Nonetheless, closing. majority his own concludes that the prosecutor’s comment constitutes reversible error. majority despite prosecutor’s
The
also finds that
reference
Gelles,
expert,
“very competent”
Dr.
to another defense
as
credible,”
“very
inappropriate
prosecutor
closing
it
for the
in
was
suggested
inappropriately
to have
that Dr. Gelles
stretched his
testimony
McLaughlin
“impul
when he described Officer John
as
discussed,
prior
sive.” As with the
comments
there was a
in
basis
support
by
prosecutor, rendering
the record to
that statement
Gelles,
During
fair.
the comment
cross-examination of Dr.
prosecutor
that in
Dr.
elicited
concession
fact
Gelles had no
McLaughlin
top
“impulsive
whether
raced to the
idea
the stairs
ly.”
repeatedly
McLaughlin
Dr.
had
Gelles
asserted
danger
top
up
unaware of
at
of the stairs as he raced
concession,
In
toward defendant.
addition to the aforesaid
Dr.
McLaughlin
Gelles also conceded that he knew that
had his hand
weapon
on
up
Perceiving
his
as he ran
the stairs.
contradictions
expert’s testimony,
in
prosecutor
engage
did not
in miscon
by suggesting
closing
might
duct
to the
in
that Dr. Gelles
gone
edge
provide
have
“over the
a little
in an effort
bit”
testimony
equate
favorable to
I
prose
defendant. would not
this
“improper
wrongful
cutor’s comments
in
with
methods
result
Smith,
supra,
167 N.J. conviction.”
770A.2d 255.
allegedly prejudicial
comments
this case are not close to
impropriety previously
the boundaries of
established
this
Rose,
Court. See State v.
454, 518-19,
112 N.J.
501
testimony
expert’s
summation that
was fabricated or contrived
counsel).
Frost, supra,
also
158
with assistance from defense
See
(referring
prosecutor’s
727 A
1
comments as
N.J. at
.2d
improper
suggesting
closing arguments
that
for
defense counsel’s
talk,”
jurors
“lawyer
hoped
counsel
that
were
defense
officers”);
[police]
mouth
State
had a “bad taste
towards
[their]
Moore,
(1991)
420, 461-62,
(holding it
v.
122 N.J.
Lastly, prosecutor’s I that the summation comments would note Sadoff, witness, inappropri- prosecution about Dr. also were not experts. contrasting testimony with that of the defense ate for his part of Dr. had testified that he did not consider himself Sadoff by testimony was referenced “prosecution team” and highlight prosecutor The was entitled to prosecutor closing. his to summa- testimony response that Dr. was balanced SadofPs Dr. as tion comments defense counsel that described Sadoff psychiatrist.” prosecutor’s “the $400-an-hour prosecutor’s ability critique majority’s paring of the *69 argument inappropriately circumscribes the record and build forcefully fairly capability state its case based prosecution’s inferences to be drawn there- on the record and the reasonable join majority’s holding I cannot in the this case from. unjust as a presented a circumstance where an verdict occurred Thus, respectfully I dissent. prosecutorial result of misconduct. joins opinion. in this Justice COLEMAN COLEMAN, STEIN, For reversal and remandment —Justices LONG, LaVECCHIA and ZAZZALI —5.
For concurrence—Justices LONG and ZAZZALI —2. Concurring part part; dissenting COLEMAN —Justices and LaVECCHIA —2.
Argued August November 2001 Decided 2002.