*1
In this case a has convicted defendant of death. Defendant and recommended that he be sentenced to major in a fair trial. The contentions contends he was denied (the dire) (1) jury process voir appeal his are that selection rights constitutional inadequate was so that it violated defendant’s (2) trial; to a fair that the trial court failed to excuse three penalty substantially interfered whose views in favor of the death (3) that, jurors; performance of their duties as converse with the juror ly, one who had reservations about the trial court excused penalty that penalty opposition to the death the death but not such juror; performance a it would interfere with the of his duties as (4) changed the order of exercise of that in mid-trial the court (5) granted per peremptory challenges; that the court an extra awarding an additional emptory challenge to the State without (6) defendant; was challenge that the State’s medical examiner vague conclusory opinion that permitted express a an accidental fall had caused her “assault” on the victim and not (7) death; expressed opinion an on the psychiatrist that a State Odom, defendant, holding in v. 116 guilt contrary to our State (1989). taken We find that the measures N.J. 560 A.2d impartial by sufficiently court ensured that a fair and the trial deny evidentiary rulings did not defendant was chosen and that the trial. We fair trial. find no other errors that tainted We affirm the convictions of murder and of other crimes and affirm Proportionality place in the sentence of death. review will take proceedings. later
I. 25, 1996, April On defendant broke into the home of Mildred Henry Place in who lived alone at West Place Iselin. She was age sixty-four. fleeing police, then Defendant was from the who nearby question had come to his home in order to him an about family unrelated matter. He and the other members of his were distraught in attempt- state because a brother of defendant had hurry, only ed suicide. in his defendant left dressed his house, underclothing. He hid the basement of the victim’s Papasawas’s which is located four blocks from residence. When home, spoke Mrs. Place came he did not at first confront her. She telephone p.m. on the at about 10:00 with a friend. The conversa- tion lasted about fifteen minutes. thereafter, time place.
Some the fatal encounter took Because attack, there were no witnesses to the there was no direct precise evidence of the manner which the death occurred. There repulsive by was evidence of bizarre and conduct defendant “very straight such as clothing, leaving cuts” of her [scissor] exposed private parts. cutting her concededly This was done when the victim was motionless. Papasawas
The State infers that attacked Mrs. Place so that he escape by capture preventing could calling police. her from *12 motive, may Whatever have been his defendant a trail left incriminating home, p.m., leaving evidence. At 11:15 he called his a record telephone call on Mrs. Place’s bill. He stole her partied girlfriend, using car and in New York awith Mrs. Place’s credit cards. murder, County grand jury
A Middlesex indicted defendant for robbery, aggravated assault, burglary, sexual and other offenses. The State informed defendant that it death-penalty would seek the c(4)(c) (torture aggravating depravity), and establish as factors murder).1 c(4)(f) detection), e(4)(g) (felony Before (escape c(4)(c) trial, granted motion to strike the the court defendant’s overwhelming in- aggravating factor. Given the evidence of his killing, sought in the defendant to show that he lacked volvement purpose kill. the intent or to defendant,2 in
According planned to he to hide the basement bed, planned he leave the home until Mrs. Place went to when to plans opened the quietly. Mrs. Place foiled those when she defendant, only wearing who was still basement door and found Attempting escape allowing her to his underwear. without anyone that he had broken into her home but without inform neck, her, severely injuring put around her in defendant his hands hold,” “sleeper induce uncon- what he described as a order to out, sleeper pass hold caused her to Mrs. sciousness. After the stairs, falling Place down the cellar stairs. While down the fell neck, injury may Place broke her a severe have caused Mrs. her death. death, feigning
Believing that Mrs. Place was defendant said attempted place gag stop so she would that he a her mouth gag pretending but unable to make noise. This she was dead be raincoat. a belt that defendant retrieved from Mrs. Place’s was belt, medical examiner referred to as a which the State impeded breathing pushed it her ligature, Mrs. Place’s because motionless, defendant, tongue to the side. When she remained sexually hoping frighten getting up, her into threatened to aggravating factors, convenience, we omit the citations to the For complete l-3c(4)(c),(f), (g), and the citations to the related N.J.S.A. 2C: 1 complete mitigating factors. through into evidence the testi- Defendant’s version of events was admitted defense, and Dr. who testified for the of Dr. Arnaldo psychiatrist mony Apolito, State. Both Portnow, L. who testified for the psychiatrists Stanley psychiatrist to show the basis for the defendant. The was admitted had examined testimony matters admissible to the truth of the It was not prove experts’ opinions. asserted. *13 comply. if assault her she did not Sexual contact was evidenced body by sperm during autopsy. found on Mrs. Place’s defense, pathologist, testifying expressed A forensic for the opinion that of the neck and the broken neck should constriction both have been listed as causes of death because he could not state degree certainty to a trauma .reasonable medical either alone caused Mrs. Place’s death. state,
Concerning presented defendant’s mental the defense expert testimony neuropsychologist psychia- from a clinical and a prior trist. These witnesses described life. in his He was born Livingston, Jersey parents New on 1972. were June His immigrants. He was one of four children. Violence filled the Papasawas household. Defendant’s father abused defendant and thought his two older brothers. When he that his sons were downstairs, them, misbehaving, strip he would take them tie them column, lally to a and beat them with a belt or stick. He took photos mother, nude of them. He beat defendant’s Fotini. He family’s pets. even beat the acceptance,
In search companions, defendant fell in with bad engaging truancy, shoplifting. in began He to abuse alcohol drugs, marijuana school, including In and cocaine. he was emotionally classified as disturbed. Minor him stresses made irritable, angry, occasionally aggressive. seventeen-years-old,
In when he was he received court- Clinic, in-patient psychiatric counseling ordered at the Carrier hospitalized twenty days. where he was for He suffered from insomnia, flashbacks, hallucinations, thoughts. and suicidal 1992, he was struck the head and a suffered concussion.
That incident injury foreshadowed a more serious head defen- during motorcycle dant suffered accident 1993. He was in a coma for almost three weeks. A CT scan revealed that defendant hygromas, diagnosis had bilateral frontal traumatic subdural suggesting buildup lobes, that defendant had a fluid in both frontal portion high-level reasoning, judgment, the brain needed for *14 person- decision-making. also control one’s and The frontal lobes planning, ality. injury significantly impaired defendant’s The injury strategy The severe head problem solving, and formation. existing impediments insight greatly exacerbated defendant’s judgment. and In personality changed after the accident 1993.
Defendant’s drinking July pulled girlfriend. defendant a knife on a His activity escalated. His criminal intensified. motorcycle psychiatrist
A testified that defendant’s defense syndrome, a organic caused him to suffer severe brain accident damage. According psychiatrist, organic this form of brain prevented acting purposefully him or know- brain disorder from deadly doctor ingly during his encounter with Mrs. Place. This quality of that defendant could not know the nature and believed right wrong. his acts or differentiate between rebuttal, psychologist a and a In offered evidence from State Portnow, psychiatrist, Stanley diagnosed psychiatrist. The Dr. personality having defendant as at most an antisocial disorder dependence problem. Dr. Portnow did not believe a substance major mental disorder or disease. that defendant suffered from murder, murder, felony burgla- jury convicted defendant of The theft, jury acquitted ry, robbery, theft. The auto and credit-card him aggravated assault but convicted him of criminal sexual contact, aggravated offense. criminal sexual lesser-included felony-murder predicate. offense was not a This latter the State with a penalty phase, defendant served Before informed the that he mitigating notice of factors. Defendant State (extreme c(5)(a) emotional distur- would seek to establish the (diminished c(5)(h) (the c(5)(d) bance), e(5)(c)(age), capacity), catch-all) was mitigating factors. Defendant’s abused childhood recurring factors defendant delineated. theme of the catch-all the court and the penalty phase commenced before Concluding that had not had convicted defendant. defendant evidence, granted defendant’s character the trial court introduced introducing victim-impact preclude motion to the State from evi- dence. phase, penalty entirely the State relied on the evidence
presented guilt phase at the to establish that defendant murdered during burglary escape Mrs. Place the commission of a and to committing detection for those crimes. Defendant relied on the psychiatric lay testimony. evidence offered at trial and additional aunt, An present who was often while defendant’s father abused him, go described how she could not into the basement because she could not bear to watch the torture. observed defen- She by causing dant’s father humiliate them his sons to walk around aunt pinch pliers naked. The saw the father use on his sons’ toes *15 they legs puddles until cried. defendant left She saw alone of urine. brother, Manny, mother, Fotini,
Defendant’s and defendant’s cancer, ill gravely pleaded who was with to the not to allocution, apolo- sentence defendant to death. In his defendant gized killing pleaded for Mrs. Place and for his life.
Finding that during defendant had murdered Mrs. Place the burglary robbery, jury unanimously commission of and the con- murder) c(4)(g) (felony cluded that the State had established the c(4)(f) aggravating jurors factor. Five of the twelve found the detection) (extreme c(5)(a) (escape jurors factor. Three found the disturbance) emotional mitigating jury unanimously factor. The (diminished c(5)(d) rejected c(5)(c)(age) capacity) and factors. c(5)(h) (catch-all) factors, Concerning jurors ten found that subject cruelty child, young defendant was as a all twelve found system that defendant’s school him emotionally classified as dis- turbed, seven found that his emotional disturbance atwas least partly cruelty child, experienced due to he had as a all twelve defect, disorder, found that he suffered from a mental or other disturbance, mental undesignated two found an factor that war- mercy. rejected proposed ranted All twelve the other catch-all jury unanimously felony-murder factors. The determined that the aggravating outweighed mitigating beyond factor factors imposed the sentence of death The trial court reasonable doubt. noncapital Defendant on the offenses. and additional sentences 2:2-l(a). right Rule appealed to us of under II. Pretrial Issues ADEQUACY OF DIRE 1. VOIR OVERALL the death- the trial court conducted Defendant asserts that According to qualification inadequate in an manner. process jurors’ defendant, prospective dire to reveal views the voir failed disregard their penalty ability and their biases on the death did not have Consequently, court counsel follow the law. prospective on determine whether sufficient information which unable to jurors death-qualified, and defense counsel were were challenges intelligently. twenty peremptory their exercise A. argues that the court failed to educate Specifically, defendant act penalty and did not jurors provisions on the of the death result, potential explain death-eligible. murders are As which death-eligible jurors understand distinction between did not Furthermore, non-death-eligible court failed homicides. jurors misconceptions they indicated prospective when to correct neglected to ask wheth- regarding the law. The court also to vote aggravating would cause them applicable er the factors *16 addition, failed automatically In the court to for a death sentence. jurors potential who ex- follow-up questions to pose appropriate unwillingness mitigating defendant’s evi- pressed an to consider questions that Finally, asked closed-ended dence. the court often suggested an answer.
B. (1983)(Williams I), Williams, 39, 93 A.2d 641 State v. N.J. 459 (1988) Williams, A.2d 1172 v. 113 550 and N.J. State (Williams II), voir dire primers are the for the conduct in of capital simply repeat points cases. emphasized We the salient in those cases.
It is axiomatic impartial jury necessary that an ais requirement condition a fair to trial. “This of fairness —and particularly jury impartiality heightened in cases in which the —is I, supra, Williams defendant death.” N.J. faces A .2d641. impartiality jury, order insure the of the we have
emphasized of the voir importance the critical dire exposing potential single jury and latent bias. our capital Under trial system, jury duty selection must serve double as a time death qualify jurors and to enable counsel to exercise the valuable prerogative selecting constitutional of impartial jury. a fair and voir dire acts as a setting, In that dual discovery tool. It should which, be like a manipulation conversation delay without trial, parties are able to the discern source of attitudes that substantially jurors’ would interfere with ability to follow the discovery procedure effective, law. In order for this poten to be jurors tial must a full comprehension legal have of their duties. II, In Williams the Court wrote: jurors [T]he [should] ] trial court with an outline of provide[ the State’s death statute.
penalty Knowledge proceeding about what constitutes capital murder, bifurcated guilt “aggravating separates and the use of the penalty phases, mitigating during sentencing jurors factors” scheme will enable all potential concerning answer the death questions free penalty misconceptions faulty concerning how the law is administered in assumptions this state. Additionally, jurors this of instruction will all type with a common provide base information removing jurors from which to answer questions, difference between on any based knowledge of law. providing [W]e believe that with a concrete and accurate view of the death concerning in New will enable them to penalty Jersey answer their questions attitudes about the death based on an accurate penalty of what the law portrayal is, juror and thus in a put to answer free of position questions mistaken notions
585
concerning
of the
to be so
on review
transcripts
which
law,
prevalent
appeared
of this voir dire and so many
others.
(citation omitted).]
[Williams
113 N.J.
at
n.
We have “yes” responses. “no” narrow and answers or elicit ermine II, 423, have supra, 113 N.J. at A.2d 1172. We 550 Williams questions pro that will of additional encouraged the formulation controversy. Obviously, a juror’s views on the insight into vide examination, doing so it must control voir dire but court must not proselytize; it must The court must not neutral. remain to voir dire “wrong” “right” or answers views of the indicate its extensive, fair and The voir dire should be probing, questioning. balanced. voir dire that we measure the against these standards
It is this case.
C. dire, purposes of voir substantially accomplished court might The court better problems arose. a number of however initially capital-sentencing jurors about educated the have aggrava involving potential case in the context of this scheme court failed to robbery, burglary. The rape, ting factors of neglected to correct death-eligible which murders were define However, court the trial regarding these issues. misconceptions juror’s inquiry into a allowing significant extremely open to was attorneys views, case. It allowed and attitudes about the feelings, single the voir dire with portions of to conduct substantial repeat ques attorneys attempt not to requirement that the into The court did not fall already asked. that the court had tions II, 1172, 416, in which the id. A.2d the error of Williams they thought if request flatly to ask refused counsel’s court automatically who apply to someone penalty should that the death murder in the knowing purposeful guilty of a found was Moore, 122 N.J. v. 446- the error of State rape, course of (1991), ask whether refused to in which the court A.2d 864 *18 juror automatically a would apply penalty the death when a child was killed. Previous courts had resisted questioning such on the jurors’ that it preview thesis would the ultimate verdict. But we emphasized have that counsel must know in such cases whether a juror willing is procedure to follow the bifurcated of the statute mitigating and consider might evidence that in result a life sen- tence even in such cases. The trial quite open court was all to questions posed such by counsel this case. With that as background, briefly we shall describe the conduct of the voir dire.
D. speaking group When to the forty-five potential jurors, first of explained: the court charge degree. charge The first is murder in the first That particular could result judges in the [of death If determine as penalty. you facts] [defendant] the is guilty of that crime as it will be for particular defined that is a you, purposeful knowing knowingly murder his own conduct or that he by or purposefully his by injury own conduct inflicted serious bodily Mildred Place which upon resulted guilty charge her if find him death, you of that then there will be a to second phase
this trial. That will be the penalty phase. The court added: guilty charge [I]f him find of that you murder of then, course, there will be a second to the trial and the phase and the will to prosecution attorneys present you aggravating mitigating what are known as factors and factors and then will you again to have I will decide, all of the law involved to at a later explain you date, would then have to you decide whether the State has to satisfaction proven your aggravating beyond reasonable doubt the existence of an factor, then, mitigating course, have to decide whether you there are factors. You would have weigh mitigating aggravating making the factors and the factors in a decision as
to what the would be. proper penalty they questioned, Before were each of prospective jurors had completed a questionnaire detailed containing sixty questions that explored potential disqualification. sources of bias or dire,
During questioned juror voir the court each first. After it completed questioning, its the court then allowed counsel question juror. each The always questioned defense almost each juror. prosecution The advantage also often took opportu- of the jurors, defense nity question potential and co-counsel for the questions. added often group jurors, the completing the voir dire of the first
After jurors. group prospective These another court instructed its lacked the detail of earlier instruc- preliminary instructions in the first- charges as “murder tions. court described jury for which “would have to deter- degree, death-eligible,” imprisonment.” The thirty years mine the sentence of death felony death-eligible not and that explained that murder was court death-eligible, to the “would move if it found defendant addressing panel, third the court phase of trial.” second involving first-degree, in the death- as “murder described case *19 eligible.” they that asked which murders complains
Defendant when sentence, potential jurors an- a life warranted several believed instances, murders.” In the court did not “accidental most swered jurors that an accidental homicide not death- explain to these was complains the court not inform eligible. also did Defendant sought jurors aggravating which factors the State prospective jurors they very prospective few if could be to establish and asked phase they during penalty if convicted defendant impartial jurors asked: aggravated sexual Some were murder assault. tend to in favor of the [W]ould tend after the would be phase, you you penalty minimum in favor life with be of the you imprisonment death Would penalty? anything to do until or would not inclined you you incarceration be thirty years everything ... [is involved] heard hand, However, exception, rule. On this not the the other was jurors being court had that defendant was instructed assault, burglary, robbery, charged sexual aggravated with jurors questionnaire in the detailed and the had asked been impair charges against defendant would the nature of the whether ability impartial. their be responsibility a court to
Although non-delegable it is the seated, II, supra, impartial jury that a fair and is Williams ensure at A.2d this does not mean that 113 N.J. reviewing may court not take into the role account that counsel played ensuring has that end. example, they
For counsel often defense asked whether impartial penalty phase finding be could after defendant guilty aggravated of murder and sexual assault. The defense posed question Reagan, replied: Juror who guess
A: I or no can’t to that. I it would have to really say on all yes depend Q: The circumstances? Right.
A. juror, Harmon, Another was asked: charges aggravated [W]hen [the court] told that the murder you are Q. things, gut sexual what assault, and the other was reaction to that? your A: ... I think of little nieces or or Mom my my or, know, nephews you my girlfriend just something something or that. For like some reason. It’s I don’t regardless drugs of what was drunk or approve of, whether he on happened, whatever. strong feelings, against aggravat- Do can Q: think aside Okay. you you put your ed sexual and listen to all the assault, and be and fair? evidence, impartial Judge A: I I know, would You like told the I think it try. before, will still stick in the back of mind, no, so know. my you leaning, [W]here would if Q. be can you you say.
A: the death. Maybe *20 that Q: Okay. scenario, With same add in assume Mr. that, has Papasawas organic damage, brain which as the result a motor happened of vehicle accident. A: Okay. Uh-hum. considering injury mitigating against Could Q: see that as you yourself physical leading
the death in you, and to life penalty, perhaps, prison? impose something just got, just got committing [B]ut A: ... if this is he prior this something crime, then it is a different. If little bit this is he knew he or his had, taking knew family had, he then should have been care of that. they prosecutor up: The followed I think
Q: is, the would to this important question listen kind you testimony? A: I Yeah, would listen. jurors’ short, every opportunity explore the
In there was II, court, held that the trial which views. Williams this Court dire, permit any attorney-conducted erred when it did not voir jurors request potential counsel’s to ask whether refused defense convicting they mitigating evidence the defen- could consider after murder. A.2d 1172. This rape dant of and Id. Court juror inquire any could reasoned that “the failure to into whether if it mitigation evidence was established that defen- consider the rape guilty was murder denied counsel and the trial dant fairly jury panel court the tools with which to insure the could happen in this did not here. undertake its role case.” Ibid. That noted, extraordinarily of the As the trial court was tolerant part Together court inquiry on the of counsel. and counsel fullest accomplished thorough searching a most voir dire. This voir dire, reviewed, rhythm on many like others that we have took a so fully the conversational mode of its own. The trial court achieved encouraged. exchanges among inquiry this Court has court, frank, open, humor- sometimes counsel were ous, Generally questionnaire pointed always revealing. but juror key tend to favor the court to the of concern. Would areas witnesses; juror psychi- would a hesitate to believe State’s betray testimony; juror’s reading listening habits atric did against penalty? a bias for or death juror, psychiat- felt about example, For one when asked how he “My testimony, replied did not think so much of it but ric that he Another psychiatrist.” tells that I was asked wife me should see Jersey radio station. She if to a certain all New news she listened stupid people to that station “are so replied that the who listened person to a you Another who listened can’t listen that.” “shock-jock” felt “Baba program radio was asked how she about Higgins Mary Clark as Booie.” described the crime novelist One author, poet, and Langston Hughes as a favored a favored another “lawyers Ally one who watched the series McBeal observed short, every opportunity to there was looked better on TV.” In jurors’ context of this case. biases and attitudes discern *21 590 wisely prepared jury
Defense counsel was
with
consultant who
jurors
suggested
questioning.
was often introduced to
and
lines of
jurors
pool
appeared
to be
and
with
fair
balanced
no
knowledge
jurors brought
at all
specifics
of the
of this ease. The
Poets,
experience
life
into the
professors,
breadth of
courtroom.
jurors
represented. Many
possessed
and laborers were
a natural
eloquence,
expressing
penalty
often
views
about
death
scheme,
statutory
viewing
appropriate
matched
death as the
penalty
killers,”
cruelty,”
for “serial
those who imposed “additional
officers,
police
those who killed
who
those
were “thrill killers.”
balance,
sufficiently probing
On
the voir dire was
to discov
any
permit
potential
peremptory
er
bias
counsel
exercise
Harris,
122,
challenges intelligently.
See State v.
156 N.J.
(1998)
(upholding
A.2d
voir
in which
dire
trial court
jurors
potential
capital-trial process
informed
about
and asked
open-ended questions regarding
capital pun
their attitudes about
law).
inquired
ability
ishment and
their
Specifically,
into
to follow
prospective
the court asked
their receptiveness
about
psychiatric testimony (through
mitigat
which
most
defendant’s
ing
introduced),
ultimately
general
evidence was
their
views on the
penalty,
religious
death
whether their
beliefs would interfere with
decision-making process,
their
they
which cases
would tend to
impose
penalty,
they
the death
in which cases
tend
would
impose
imprisonment,
life
whether their friends and relatives’
capital punishment
them,
views on
would influence
and whether
they
sentencing
consider
options during penalty-phase
could
both
always permitted
deliberations. The court
supplement
counsel to
questions.
its
attorneys,
The defense
whom a
consultant
assisted,
questioned prospective jurors
often
regarding their im
partiality
they
in a case in which
would be asked to convict
aggravated
defendant
both
murder
sexual
assault.
addition, the trial
prospective juror,
court often asked each
consis
Moore,
454, 489-90,
tent
supra,
with
2. FAILURE TO EXCUSE
DEATH-PRONE JURORS.
A. juror unsuccessfully challenged for The whom defendant first general “in I Harry stating After Applegate. cause was know, “you penalty,” he added that for vicious believe in the death good too for types [my] gut feeling ... ... it sometimes is is complained judicial delays, “the people.” He that because of some out. guy age” before the sentence is carried When dies of old judgment, age influence his asked whether the of the victim would he said: age. right line mother’s I don’t know whether I can draw a clear
That’s at my although to, I think I wind I wouldn’t tend associate between the two. would up, some of that. viewing photographs: context repeated He this concern in the think? would be Mr. detriment you And that Q: Papasawas’ A: Probably. challenges these from two of its to remove State used peremptory jury.
the argued Applegate The defense not could assure the court that impartial he would be age view of the victim’s it that was prosecutor’s questions suggested the later that had the rehabilitat- ing Applegate fairly judge answer that could spite the matter in feelings his reviewing transcripts, about his mother. After court said: right, All own own, the answers this my my interpretation by particular potential
juror is that he would be to fault, honest and he has a brutally mom obviously age alleged that’s about the same as the victim in this or case victim in this he would case, but stated he look clearly evidence and decide the case on the evidence and he would decide death issue on penalty one evidence, way the other.
B. juror next unsuccessfully The challenged Shampaner. was Bette involving Asked for her a reaction to case the sexual assault and sixty-four-year-old woman, murder of a she described her reac- tion: goes against I think. It lousy me.
Pretty Asked if she mitigation could nonetheless consider in defendant’s mental disturbance childhood abuse:
Well, we’ve had kind of in actually those conversations office about my dysfunction- upbringing just al all that stuff can use a and, you know, that to certain you That’s it. point. admitted, tendency, Her heading penalty she phase into the would be death. Defense counsel asked: feelings Do think it be Q: you would hard for you aside put your personal assessing
about this abuse excuse evidence type the case? penalty A: No.
But pressed, acknowledged her, when she that for an
It’s not excuse.
Again, prosecutor sought to rehabilitate her. If you heard with two Q: psychiatrists different of view could points sit you down and evaluate what had said and decide how they relevant either testimony
was? weigh A: Yeah. I would have to, you know, both sides and see which I felt was more correct. defen- psychiatrists if favor the over Asked she would State’s dant’s, she said: not I’ll to.
No, try defense, always disregard if a mental state Asked she would not she said: eliminating total.
A: Yeah. I’m not it could come to a So evaluate and conclusion. Q. you would A: I tiy. The Shampaner removed cause.
The defense asked that be for responded: court mitigating of the has some reservations as to some lady obviously possible
factors____ I listen to absolutely any not hear her that she would not say did I would believe that she any and not consider testimony testimony____ all of the That’s not that she may listen to fairly testimony. say impartially into this whether courtroom, some ideas when she walked not have preconceived to follow instructions. It’s my those will instructions her ability override my juror. I her for I think she’d be a won’t exclude doubtful. very, very proper cause. I’ll her. qualify ,c. juror unsuccessfully challenged was When The third Ira Leslie. penalty, he answered: asked about the death got Judge. one I’m conservative. I believe I’ve honest with Well, you, pretty be young girl. life, no another officer or police life is different than And later: just going to an one were made, eye, you say Does statement Q: you *24 an for eye?
eye A: Yeah. asked, questioning, further the court
After not an for an So it’s Q: strictly eye eye? thing, talking, for an one but eye A: If in a an is you’re eye bar you’re got making more than on then to look at you’ve
when a decision you’re somebody, for an eye eye. woman, sexual-assault-strangulation of a when about a But asked enough punishment. not thirty-years imprisonment was he said eye an in an for by later defense counsel if he believed Asked eye: A: all on It know, circumstances and the how depends you much story, there is. one But, know, on hand I
proof you believe, know, take you you life, give should But you life. when look at it and here now I you you sit the way am, go. maybe life’s toway accept psychiatric Asked if he potential could evidence as evi- act, mitigation dence in of that he said: A: No. something That’s not would think
Q: would matter in that you context? listener____ good A: I’ll listen I’m a to it. no I won’t take it very [B]ut, as an know? excuse, you circumstances____ A: I can’t answer until I hear the whole And this not an is excuse. insanity just get A: an It’s excuse to out of the death penalty. got
A: to I’ve be honest with I don’t look at it as an you, excuse. Reminding Leslie of example, prosecutor his barroom got agree Leslie reject to that he not could evidence out hand. goes against right it Boy, me I now, but could. probably agree And to that he would not against” “vote defendant “no you matter what heard”:
A: I couldn’t live with No, that, and do no. myself agreed The court to reconsider its decision on the motion to disqualify transcript Leslie until it read the the questioning. me____ I read the that was transcript provided one of those Obviously reluctant who would rather not make decision if but he did he would —he
would be with very fastidious “You respect any psychiatric testimony____ mean got voting it’s a barroom kill them all easy say but when to do you it is a tougher?” give little [“]Would Answer: ‘Yeah.[”] both sides in this an you case honest fair evaluation and listen a fail- and make decision?” Answer: “Defi- against !“]And no matter nitely.!”] what heard would you you vote him?” Answer:
595 was “No, do that?” And the answer was “Would you “No.” And then question and do no.” that, I couldn’t live with myself qualified The court Leslie.
D.
traditionally
are
with
procedures and standards
Voir dire
and “its
discretionary powers vested in the trial court
in the broad
ordinarily
appeal.”
on
will
not be disturbed
exercise of discretion
(1964),
Jackson,
148, 160,
sub
tive
nature.
They require
designed
to sit
to detect whether he is able
as
to
he
credibility
responds
questions
such evaluations are necessarily
fair
trier of fact. Consequently,
as a
and impartial
juror’s
during
voir
the course
of the
demeanor
an observation
upon
dependent
making.
court is
from
which an
precluded
dire —observations
appellate
judge
was in a
demeanor, he
as
trial
observed the venireman’s
Inasmuch
statements,
of such
credibility
assess the
accurately
sincerity
position
evaluation____
due deference to his
we should therefore pay
omitted).]
(citations
We are satisfied that the trial court
Applegate,
agree
Shampaner
but we cannot
or Leslie were
qualified
expressed
convincing
to serve. Each
a
against
bias
considering psychiatric
especially
evidence. That bias was
crucial
defect,
here because the
organic
defense included a claim of
brain
type
thing
juror
not the
of
about
a
which fair-minded
should have
Here,
Moore,
453-54,
supra,
reservations.
as in
witnesses than to others.
we do not ask
However,
whether the fact that
some witnesses are law-enforcement officers “would
interfere with
substantially
their
to follow
law.”
ability
[Moore,
If a said that she did not believe it, “try” to we doubt that a court innocence but would follow juror. remove such a Mental disease or defect would hesitate to values, but a defendant is presents slightly different set of person persuade move a mountain to entitled not to have to Legislature has mitigating the relevance of evidence sentencing Challenges expressly recognized capital in its scheme. partiality grounded legally cognizable on bases of for cause are witness, party or personal relationship as “a with a such concerning a attorney litigation, or a biased state of mind Annigoni v. ease.” United States party in the 96 F.3d or issue *27 (9 thCir.1996). 1132,1138 preserve integri responsibility
The trial court’s
jury
...
ty of the
“under both the federal
state constitutions
I,
Williams
peak
involving
penalty.”
death
is at its
cases
Ramseur,
supra, 106 N.J.
63,
641;
supra, 93 N.J. at
see
459 A.2d
84,
right to a “trial
at
n.
524A.2d 188. The Sixth Amendment
324
very
a fair trial.”
by
impartial jury
goes
...
to the
essence of
an
I,
60,
“All
93 N.J.
supra,
at
larly jury impartiality
heightened in cases in which the defen
—is
jurors
dant
death.” Id. at
voir and was removed from the any apparent us, without unfairness to defendant. Before defen- dant claims that unfairness arose because two sat who were Specifically, biased or at least to him. unfavorable defendant Shilpaben partial jurors contends that Juan Valdes and Patel were on who sat his case. only partiality gave question indication Patel was in her
naire, age in which she wrote might impair that Mrs. Place’s her ability impartial totality be this case. The of her voir dire open demonstrates that Patel had an mind. Patel indicated *28 opinions had questionnaire, she not formed on the case. In her expressed general penalty, she no views on explaining, the death sure, “I wasn’t so I didn’t hospital answer that.” She worked in a psychiatric and was aware of the fact counseling that can be helpful people. questionnaire Juan Valdes said in his that his general penalty “tough view on the death was that it was a anyone of, for against, guess, my decision to make. It’s kind I Furthermore, religion.” defendant’s claim that and Patel Valdes partial jurors by were is belied defendant’s decision not to chal lenge juror v.DiFrisco, peremptorily. either for cause or State (1994) (DiFrisco II). 137 N.J. 645A.2d DISQUALIFICATION 3. THE AOF LIFE-PRONE JUROR Roberti, The trial juror court removed for cause Mario who had about penalty. reservations the death argues Defendant that the exclusion of Roberti was error. Here is some of the colloquy with the court. general feeling What would is
Q: you say about your the death penalty? against A: be it if I had to Probably choose. absolutely Q: Let us assume for a second that won’t Okay. have to you absolutely choose but that it is an that have. If option you are with the you presented proper evidence could choose that you option?
A: no. not, Probably Asked if he would City sentence one such as the Oklahoma death, “probably impose bomber to Roberti said he would not” death sentence. imposing not? I want Q: Why reasons. What are reasons for not your
death sentence in that case? just A: like I I don’t know if Because, said, can anyone because really say you this, that, did he did all could kill him for it. you There exchange during followed an explained which Roberti likely that he was not to sentence Jeffrey to death one such as Dahmer, youthful who had his cannibalized victims: Are there kinds of Q: murders where would any believe the death you is
penally Other than appropriate penalty? your family? A: no. not, Probably Under
Q. circumstances. any
A. No. sought
The defense to rehabilitate Roberti. goodness Can ... Q. you aside own put your personal beliefs about the or the badness of the death with the penalty other eleven and reach participate judge gives a determination as the law and then vote conscience on it? you your I mean can do that? you A: Yeah, yeah. I — judge’s charge Can Q. and hear the you participate process and tell the
judge feelings consider both you’ll alternatives aside? personal *29 guess. I filled that I feel like when obviously I I mean since don’t A: though guess strongly, I could, I I but really out I didn’t feel [questionnaire] to____ wouldn’t want really judge’s follow would basically follow the instructions you But would you Q: juror judge gives a citizen? it to as a law as the you guess Yeah____ I I would have I think it’s like but my place A. I mean don’t thought to____ if I felt that I could that I so. I mean obviously If it was so bad then I would. up: prosecutor then followed strangling in their case with one another person How about a Okay. person Q: home? enough wouldn’t I don’t think. A: That be that he could up Roberti’s answer The court then followed by explaining that required if it impose penalty the death the law juror’s ultimately choice. The court asked was the decision saying following: if he was Roberti it. If I choice for— law to do it then I won’t do have the But if I am not forced by give for I will the life always imprisonment of life for thirty years imprisonment McVeigh in other any in the Dahmer even case case, Even thirty years. case? Eight. A. views, satisfied, court, trial that Roberti’s are as was the
We entitled, substantially interfered fully would have which he was juror capital ability perform the of a case. with his duties disqualifying him. The trial court did not abuse its discretion PER- THE OF 4. IN ORDER OF EXERCISE REVERSAL PER- AND OF AN ADDITIONAL EMPTORIES GRANT TO THE STATE. EMPTORY CHALLENGE Thus, we shall discuss them These two issues are related. case, twenty a murder defendant had together. Because this was challenges had twelve. R. 1:8-3D. peremptory and the State
A. jury in After this case. employed a struck The trial court ceased, parties and the exercised fifty jurors, voir dire qualifying challenge process challenges. peremptory The peremptory their jury seating in the box fourteen court with the commenced struck, jurors jurors. potential were prospective When qualified jurors. At prospective the jurors replaced the excused other jurors fourteen situated striking process, the conclusion of the jury the box sat on the case. for additional pre-trial hearing, had moved
At a defendant it should wait challenges. The court believed peremptory if it arose decide the issue and said that it would until voir dire during jury-selection process. the jury- peremptory challenge. The the first
The State exercised and the alternat- process continued with defendant State selection peremp- his fifth removing jurors. After defendant exercised ing to strike another tory challenge, court directed the defense the defendant, juror and immedi- counsel struck a juror. behalf of On At defense coun- heard at sidebar. ately thereafter asked to be the discussion. On request, court held an off-the-record sel’s the to excuse record, explained that it had asked the defense the court eight had more re- jurors consecutively because defendant two the court challenges than the maining peremptory State exercise back-to- fairer to have defendant that it would be believed ability eight to excuse would not have the back strikes so he challenges. its consecutive-jurors the had exhausted after State bring “I a little to counsel: want Specifically, the court stated sides, two process between the to the selection more balance selecting sitting the last you’re going to be here otherwise because excusing eight.” eight the last co-counsel, he, consul- and defendant’s argued that
Counsel jurors striking based on strategy for planned tant had exercis- would alternate assumption that defendant and State argued that the order for challenges. ing peremptory Counsel beforehand. have discussed excusing should been striking agreed that have discussed court order should been prior striking process to the commencement and stated planned it had to hold a of this issue earlier in the discussion objection, morning so. but had not done After the the court parties ruling having reversed its alternate reverted using peremptory their strikes. striking process, passed had
Later the State on three opportunities peremptory challenge. to exercise The defense challenge, then exercised its fourteenth and thus had six strikes remaining, challenges. had two of while the State used all but its *31 sidebar, striking prosecutor modify At a the asked the court to the order. The court declined but that it had to noted the discretion grant peremptory the it challenges additional to State and that if would exercise that discretion needed. challenge,
After his peremptory defendant exercised nineteenth Jeffreys sidebar, place jury Juror her in the At the took box. strikes, prosecutor, exhausted moved who had his for an additional peremptory challenge juror so that strike whose he could this County, fiancé had convicted of in Middlesex been arson the venue Jeffreys of both the murder and trial. believed fiancé that her unfairly through was treated because he an inferior received deal plea bargaining objec- than his co-defendant. Over defendant’s tion, gave peremptory challenge the court the State an extra good because it that the believed State had a reason to strike the juror. peremptory The asked for an challenge, defense extra but Instead, grant request. the court declined to the the court stated granting it would an peremptory consider extra strike if defendant good needed it and had a reason for it. Jeffreys, replaced by Knight.
The State struck who was Juror defense, exercising peremptory challenge, The its final excused Harmon, replaced. Juror whom Juror court Burton The trial they any applications. asked counsel if had The defense an- swered, “No, jury Judge. satisfactory The to is the defense.” jury satisfactory. the Occupying State also found seat
603 fourteen, juror. was an not Burton alternate He did deliberate phase the capital either of bifurcated trial.
B.
Brunson,
132,
(1985),
In State v.
501
N.J.
A.2d 145
Justice
exhaustively,
subject
proper
Stein
reviewed the
of
the
order
exercising peremptory
Despite
importance
challenges.
the
of the
matter,
subject appears
to have been left to the discretion of
guidance
uniformity.
courts with little
and without
See State v.
158,
Myers,
N.J.Super.
(App.Div.1990)(re
In challenge the trial court had a one-for-two during procedure eight rounds of Id. challenges. first words, required A.2d 145. other defendant was exercise, rounds, during eight challenges those two for each one by Observing exercised the State. that the same effect could have by prosecutor, strategy been Court achieved found no change. reversible error but saw the need for It said: *32 We are nevertheless the of a for impressed desirability standardized by procedure challenges the of in the exercise of criminal cases. implementation peremptory Accordingly, we will solicit the recommendation of our Criminal Practice Commit- governing tee as to of a the establishment Court Rule the exercise of by procedure challenges. In to trial the maintain courts should peremptory interim, uniformity using challenge refrain from from the custom- peremptory procedures differ alternating method. ary, one-for-one, (footnote omitted).] [Id. 145 145, 501 A.2d adopt The Criminal Practice Committee declined to a hard-and- instead, but, fast rule place recommended the rule in at the time of the trial that stated: kidnapping, aggravated manslaughter, manslaughter, murder, indictment for
Upon aggravated aggravated aggravated assault, assault, sexual sexual criminal assault, 604 forgery aggravated burglary, if it arson, constitutes contact, arson, robbery, sexual degree perjury, 2C:21-lb, a the third as N.J.S.A. the crime of defined by challenges alone shall be entitled to 20 if tried and to
defendant peremptory jointly; challenges the have 12 such when tried State shall peremptory challenges challenges if tried for the defendant is alone and each peremptory jointly. defendants when tried afforded challenges, in which an ease each side is entitled to number of those equal any challenges one, shall one the State a criminal case the by alternate with exercising challenge. in a civil case the first plaintiff challenge passing of a not constitute a The shall waiver peremptory by any party right against juror, exercise the unless all thereafter to same any parties challenges. successive pass 3(d),(e).] [a 1:8— Brunson, analysis Applying are we satisfied no error in the court’s there was fundamental constitutional mid- change trial peremptories. the order of exercise of The court quickly customary rather reversed course reinstated procedure.
C. Concerning grant an peremptory extra to the corresponding grant peremptory State without of an extra to defendant, proper analysis we believe should be that by applies peremptory challenge which to the loss of a the failure juror Applying excuse a for cause. the balance of factors set II, Bey supra, prejudice forth in we are satisfied that did not noted, willingness grant arise. As the trial court indicated its peremptory an extra if needed. defendant general not from Were we convinced tenor of the voir dire responded request, that the court would have to such we would genuine relationship have of court and concern. counsel was by professionalism. marked candor and counsel an Had had abiding peremptory challenge, concern about the need for an extra *33 responded we the favorably. surmise that court would have Moreover, Jeffreys could well been for cause. have excused Re- member, stage, challenges. at this held State no more If peremptory challenge defendant asked for one more and exercised it, juror might he drawn a those who have less desirable than sat.
III. Issues Trial 1. ADMISSIBILITY OF MEDICAL EXAMINER’S EXPERT DEATH
TESTIMONY REGARDING CAUSE OF A. Shuster, County Marvin Because Dr. Middlesex Medical Examiner, trial, ill testify gave was unable to he video- taped deposition, which court the trial admitted in lieu of his in- deposition court testimony. qualified Shuster was at the as an expert pathology. in forensic day neighbors
Shuster Mrs. Place saw at the crime scene the her, performed autopsy days found he an on her two after she deposition, injures, died. At the Shuster detailed Mrs. Place’s conducting autopsy, signifi- which he while observed and their cance. prosecutor
When the about the that was asked Shuster belt tied mouth, subject around Mrs. Place’s State broached the cause of death: ligature [the was] If all she had on her neck would that cause her death?
Q: thought strangulation A: I had a she combination of mechanisms of and those ligature strangulation. were both manual The State’s direct examination of Shuster with a brief concluded discussion of the causes of Place’s death. Mrs. viewing As a result of Q: and the —and at the Okay. your your autopsy —of
scene and with Mrs. I ask whole did Place would whether or procedure you not area have an on cause of your death. expertise you opinion thought strangulation, A: I died of which she the assault was by compounded ligature. both manual and *34 ligature? strangulation the this by So total assault plus manually Q: Okay. A: Yes. testimony. object did not to this
Defendant cross-examination, did not On Shuster testified that he believe fall) (injured in the her Place’s broken neck caused death Mrs. separation and without the fracture occurred “without because overriding.” The did not cross and redirect examinations cover death, except the Mrs. for whether the fractured cause of Place’s of death. vertebrae constituted mechanism trial, Adams, expert defense in At Dr. John E. the forensic strangulation either manual or pathology, testified that the the to could have caused Mrs. Place die. broken neck B. testimony “the Defendant contends that Shuster’s that assault” was “ultimate issue” evi- caused Mrs. Place’s death inadmissible videotape and should have been deleted from the shown to dence defendant, identify jury. According testimony the failed to to this “put an impermissible expert the mechanism or cause of death and imprimatur theory on that the was the State’s death intentional.” argues testimony that cause-of-death was not Defendant Shuster’s by the hence supported factual evidence and was also inadmissible net opinion. position by designating “the
It is defendant’s assault” as death, implied the of had cause Shuster defendant intentional- ly Mrs. Place. This the of murdered conclusion exceeded bounds expert testimony jury’s duty on proper encroached the issue, purposefully the ultimate whether defendant decide defendant, According knowingly Mrs. murdered Place. Shus- testimony a fair right therefore violated defendant’s trial ter’s plain admission the trial error. its into was
C.
subject
general
if
is admissible
matter
or its
issue,
[E]xpert opinion
average juror might
which
not be
is one with
an
specific
sufficiently
application,
or if the trial court
familiar,
determines that
would “assist the
expert testimony
jury
comprehending
determining
the evidence and
issues of fact.”
(1995) (quoting
[State
Odom,
v.
N.J.
Despite imprecision testimony, his convinced we are testimony jury’s that Shuster’s cause-of-death under assisted the importantly, totality standing of the facts. Most testimony informed the he considered the two forms of strangulation portion to be causes of Mrs. Place’s death. testimony assault,” which Shuster named “the or in the assault,” *35 prosecutor’s words “the total revealed that the combina injuries during tion of Mrs. Place suffered her encounter with defendant could not out as also be ruled causes of death. opinion regarding
Shuster’s the cause of Mrs. Place’s opinion. net-opinion an death was not inadmissible The rule net expert forbids the admission into evidence of an witness’s conclu unsupported by sion that v. is factual evidence. Lanzet Green 168, 186, (1991). berg, 126 N.J. 1809 594 A.2d Shuster based his opinion concerning on the cause of death his crime-scene observa Place, autopsy length tions and his which of Mrs. he described deposition during announcing opin his before his cause-of-death Although explicitly testify ion. Shuster did not that he based his opinion findings, autopsy on his crime-scene observations and the easily jury opinion could infer of expert the bases Shuster’s regarding cause of death. the Mrs. Place’s testimony
Whether Shuster’s cause-of-death
exceeded
scope
permissible
opinion
complex ques
the
expert
of
is a more
argues
by expressing
opinion
tion. Defendant
that
that
the
“the
death,
essentially
jury
assault”
a cause of
the
was
Shuster
told
purposeful-or-know
that he
defendant
a
believed
had committed
Odom,
ing
In
supra,
murder.
we held that “the determination of
guilt
facts that
to establish
a function
serve
innocence is
Hence,
exclusively
jury.
testimony
expert’s
reserved
for the
an
expresses
opinion
a
that
guilty
direct
defendant
is
of the
77,
charged wholly improper.”
crime
is
116
A.2d 1198
N.J. at
560
(citation omitted). However,
long
expert
“as
as the
does not
simply
express
guilt
his
of
but
characterizes
opinion
defendant’s
light
based on
facts in evidence in
of his
defendant’s conduct
the
opinion
objectionable
specialized knowledge,
is not
even
though it
ultimate
that the
must decide.”
embraces
issues
testify
illegal-
(permitting
Id. at
State v.
153 N.J.
708 A.2d
set
proper expert testimony by
quali
medical
bounds of
examiner
Jamerson,
only
expert
pathology.
fied
as
an
forensic
by
medical
stated that an automobile accident caused
examiner
330-33, 708
drunk driver was a homicide. Id. at
A.2d 1183.
recklessly
defendant
that he did
the victims’
contended
not
cause
and,
result,
guilty
was not
reckless
Id. at
deaths
as a
homicide.
334-36,
Holding
medical
A.2d 1183.
that the
examiner should
testify
believed
permitted
not have been
that he
the defendant
homicide,
had
reckless
concluded
the medical
committed
we
“testimony
describing
examiner’s
should
have been limited
physical properties
implement
[victims’]
caused the
deaths,
physiological
narrating the
of the
at the time
status
bodies
death,
ruling
possibility
injuries
out the
that the
were self-
inflicted or
as a
mere
Id. at
sustained
result of
inadvertence.”
*36
337,
Noting
analyze,
Shuster, unlike the
not
medical examiner
did
testify
purposefully
knowingly
that defendant
or
murdered Mrs.
Thus,
express
opinion
Place.
not
he did
a direct
on defendant’s
However,
guilt
capital
murder.
Shuster’s characterization
Mrs. Place’s encounter -withdefendant as an assault was not based
specialized knowledge
Odom,
on his
pathologist.
as a forensic
supra,
79,
N.J.
There is a difference between Shuster’s statement concerning expert the cause of testimony death and explicitly states intentionally that defendant killed Although Mrs. Place. an might attack, “assault” connote deliberate it also served to injuries describe the two neck signs and other of trauma that he addition, found. In intentional conduct conceptually is distinct bring from intent to specific about a result. Defendant’s intent to bodily injury cause severe or. death logically does not follow from his intent bodily injury. cause some every non-deadly Not murder, attempted assault is an by as evidenced State statutes murder, proscribing felony manslaughter, by or death automobile. Therefore, we believe that testimony Shuster’s that “the assault” caused Mrs. Place’s death was not expert tantamount to an opinion purposefully that defendant knowingly or murdered Mrs. Place or a mischaracterization of the events.
Although might Shuster better have described Mrs. Place’s resulting cause-of-death as from strangulation, two forms of plain trial court did not commit error when it failed to redact his reference to “the assault.”
2. ADMISSIBILITY OF THE STATE PSYCHIATRIST’S
EXPERT TESTIMONY
A. response testimony that defendant suffered from a mental prevented condition that him acting purposefully from knowing- *37 Place, ly when he killed Mrs. the psychiatric State introduced the expert testimony Stanley of Doctor Portnow. The trial court qualified expert. thirty-nine years Portnow as an He had of experience practice in position and at that time held the of clinical professor psychiatry of the University New York Medical School. major
Portnow testified that defendant suffered from no mental disease or disorder but had personality antisocial disorder and a polysubstance dependence problem. Despite the court’s caution- ary prosecutor, permitted instruction the Portnow was rambling monologues: embark on these evening And indicated earlier on the Q. you to the previous homicide he drinking, had in a had, bar, he been he had been I think? A. Yes. Is that —would that?
Q. you expect A. his Yes, that’s everyday He ran from his operation. intentionally parents’ hearing telling home, not because he was ill or he was mentally voices him to run, evading but he ran with the of intentionally because he purpose police was scared. knowing He arrived at the decedent’s home that it was not his home and it illegal was to enter the He was not so out of it that premises. he did not know things. through those He nevertheless climbed basement window. His open intention and was to evade purpose and hide out so police he could not be discovered. hearing He was not voices at the time and was able to use his adequately judgment for its criminal purpose. When the when Mrs. Place lady, came home and confronted one he they another, making her hold with put with the sleeper express, express her purpose unconscious so that she would never be able him. He not report did feel a just threat —a from threat her. He physical wanted to be sure she never him to the reported police. Believing faking that the woman was unconsciousness, he threatened to assault generally her in the anus if she did not wake He said that women up. don’t like anal intercourse and if she heard she him, would wake With the up. express engaging in purpose threatened sexual act with her, he cut off her clothes with a with of scissors which pair he retrieved from the basement and apparently had some form of sexual contact with her. At least some was found around sperm the anal orifice. He did not have so he any stole his victim’s money credit cards and car for keys furthering escaping. his purpose intention of He made a call about phone originated which we have talked order to conceal the location of where the call *38 girlfriend from. He a in New York. used the credit They cards phoned lady’s champagne, got again. wine and and he drunk purchase underlying There is no mental disease or disorder in this case. if I read Dr. And agrees. [the witness] defense he Mr. Apolito’s does report correctly, Papasawas diagnosis], have an antisocial disorder which is an Axis II personality [psychiatric [major] but that is not a mental disease or disorder in of an Axis I the sense of the American Association. Mr. knew what he was Psychiatric exactly Papasawas doing. judgment keeping He exercised his for the of from purpose police detecting his whereabouts so he would not be arrested. order to achieve this he broke into and of entered home the deceased and hid there. When purpose, Mrs. Place him and he realized she would call the he happened upon police, stealing killed her and assaulted her her credit car sexually before cards and keys. injuries] [W]hat [defendant’s relevance did head have in ? Q: estimation your A: I don’t think much a Well, of role here. This is a man who was they played deranged organically not either He was oriented. He psychiatrically. certainly hearing everything goal-directed was not voices. he that he did was He, was, purpose-directed. I was, do not believe—I don’t doubt that he that he sustained concussions and injuries according serious on both of those but to at least Dr. Miller’s occasions, he had made a at least was back to his baseline level report, complete recovery, from before the accident the accidents can no role in the and, therefore, play understanding of this incident. aggressive, organic who who, out, act who act who have People people people damage, thinking. get brain do so almost like without impulsively, They discharge from the central nervous run amok. That is not what system they thought, goal-directed here. This was a action. This there was happened was, nothing, nothing in other there was words, me, The woman can impulsive. identify I’ll her throw her down the if she is not hold, dead. put sleeper steps already organic acting organic That is not an out. who have brain impulsive People damage premeditating just still of are like Just capable crime, schizophrenics. right go because doesn’t mean have the out and Ml you’re schizophrenic you of I it someone and the activities as have recorded here. type point, objected. objec- At this Sustaining defense counsel tion, immediately gave the trial court a curative instruction: gentlemen jury, got something. Ladies and of the I’ve to tell I’ve been you listening gentleman to this doctor now for the last five minutes tell us that this is guilty everything charged job. job. of he’s with. That is not his That is You your are all of here; heard the evidence. You’ve heard all of the you’ve testimony going gentleman guilty to decide whether this is of the
you’re crimes any charged, job. not this That doctor. is not his He call tell us about psychiatric, cognitive mind, state of functions. That’s what he’s an on. he’s not But, expert guilty anything. job. us Mr. here tell is That’s not his Papasawas going sure that realize that to decide. And I want to make you That’s what you’re so, If the believes it we are led an by expert’s opinion. expert because sometimes guilty job of the to determine whether he’s any must be so. No. It will be your charges. examination, direct Portnow conclud- the State resumed its When any type from of mental disease ed that defendant did not suffer capacity deprived him of a substantial or disorder that would have appreciate quality the nature and of his actions or to know or counsel, had they wrong. arguing that Portnow were Defense case, in the moved for a mistrial. testified to the ultimate issues *39 alternative, to instruct the In the defense counsel asked court testimony. jury disregard entire The trial court Portnow’s jury’s by giving usurped had function an agreed that Portnow However, guilt. the court denied the opinion of defendant’s sufficiently the curative instruction motions and concluded expert testimony. trial improper admission of remedied the instruction, jurors that the had understood the court noted their heads in assent to the court had observed several nod cautionary instruction. guilt-phase charge, gave general expert-
In the
the court
testimony
gave
The court also
an additional caution-
instruction.
testimony:
ary
regarding
instruction
Portnow’s
gave
Portnow,
that seemed to
Now,
doctors,
you
testimony
one of the
Doctor
some
guilt
indicate his
as to the
or innocence of the accused. Those answers
opinion
I so
that he
were
told
at the time
made these
you
inappropriate
improper,
statements.
B.
earlier,
may
expert
express
an
witness
not
As stated
Odom,
guilt
opinion
direct
on the defendant’s
or innocence.
77,
Moreover,
impermissi
supra,
A of Portnow’s was thus permissible expert testimony Portnow twice exceeded the limits of by commenting opinion guilt. on his of defendant’s In one in- stance, defendant, police Portnow testified that to evade officers him, questioned who had “broke into and entered the home of the happened upon deceased and hid there. When Mrs. Place him police, and he realized that would he her and she call killed sexually stealing assaulted her before her credit cards and car keys.” represents opinion This statement Portnow’s direct guilty charged. defendant was of the crimes of which he was instance, again, explicitly, another Portnow albeit less as much as *40 committing purposeful just accused defendant of murder —“... you’re schizophrenic you right because doesn’t mean have the kill I it go type out and someone and the of activities as have recorded here.” court, however,
The trial issued a curative instruction immedi- statement, it, Portnow, ately telling jury after that the that not any guilty decide whether defendant is of the crimes would charged. repeated during trial the court a similar instruction guilt-phase charge, the the that Portnow’s which court told testimony regarding guilt improper. defendant’s was The court testify only psychi- also stressed that Portnow could to defendant’s atric condition and of mind. state 614 testimony permis was
Although
bulk of Portnow’s
sible,
directly
testimony in
commented on his belief
which he
However, the trial court’s
guilt
improper.
in defendant’s
was
immediately
state
given
after Portnow’s
curative instructions
remedy
charge were sufficient to
guilt-phase
ments and at the
Winter,
640, 477
improper testimony.
v.
96 N.J.
Portnow’s
State
(1984);
Timmendequas,
also State v.
161 N.J.
A.2d 323
see
(1999)(holding curative instruction ameliorated
3. ADMISSIBILITY OF EVIDENCE FILED BY THE VICTIM’S DAUGHTER denying claims that the trial court erred Defendant Nutbrown4, the victim’s right counsel the to cross-examine Sandra against daughter, concerning the basis of her civil lawsuit defen lawsuit, alleged that defendant dant and his doctors. that she person, physicians negli ill had dangerously was a his gently protect as Place from his failed to others such Mrs. correctly question trial excluded this line of condition. The court credibility ing on because the witness’ lawsuit did not affect her penalty phase In the of the the matters to which she testified. trial, purpose if was to such evidence would have been relevant its establish that defendant did in fact suffer from a mental disorder. Nutbrown, however, expertise opinion. lacked the to offer such an effect, possessed expert opinion the evi If she evidence to admissible, properly presented. dence would have been if Be type present, we trial cause that of evidence was not hold denying questions concerning court did not err counsel’s defense legal that in theories of Nutbrown’s civil lawsuit. Recall State Nelson, (1998), 487, 520-21, v. A.2d the claimant 155 N.J. photographs In Nutbrown's she authenticated of Mrs. Place's testimony, scissors, Place owned which bedroom. She also testified that Mrs. both clothing, shoes, which were found in Mrs. were used to cut Mrs. Place's Place's car in New York City. *41 penalty phase relevant the police misconduct that was alleging allegations. to make the possess expertise the did PHASE ISSUES 4. OTHER GUILT prosecutor committed misconduct claims that the Defendant allegation that defendant threw during his his summation because supported by the evidence. steps was not Place down the Mrs. following assertions: prosecutor made the The the of the stairs. at the of the not bottom stairs, this all top And happens this confrontation took the doubt that place And it shows reasonable beyond there. at The button is found of the stairs. Look the pictures. at the hallway top earring is in the The is found there. The is found there. The button cover skirt cutting, straight scissors. And the are there that did closet. The scissors up them. see you’ll who is not of the stairs aby person all conduct the top This is purposeful goal. who has a Does it but somebody who has not diminished insane, capacity, judge will tell No. The Does the state have to motive? have to make sense? prove figure it wasn’t a result of can’t it all but out, have to because we we don’t you falling stairs. down the somebody in the hall. And why took assault, This this this homicide attack, place upstairs said. said in is what Dr. Shuster He basically that? Because that did the state say not a mechanism of death. that that broken neck was it, and he still said his report, could have lived with that. She object any portion trial, counsel did not At defense summation. State’s misrepresented the prosecutor argues that the
Defendant now against him. made baseless accusations in the ease and evidence unequivo- defendant, pathology evidence According the forensic when she fell down Mrs. Place was alive cally showed that Further, prosecutor had no defendant claims stairs. fatally allege that defendant which to evidentiary basis from body steps. her down strangled Place and threw Mrs. prior to beat Mrs. Place that defendant prosecutor’s accusation Finally, defen- “pure fabrication.” strangling her was therefore allegation that defendant prosecutor’s argues that dant *42 616
propped open the door with a broom so that he could throw Mrs.
steps
supported by
Place down the
was not
the evidence.
expected
“[P]roseeutors
criminal cases are
to make
vigorous
closing arguments
juries.”
Frost,
and forceful
State v.
(1999).
76, 82,
158 N.J.
A prose the case will constitute cutorial misconduct if it draws unreasonable inferences from the prosecutor’s comments, evidence adduced at however, trial. The contained reasonable inferences from the record. It was reason able to infer that defendant assaulted Mrs. beginning Place at the physical their encounter. There was struggle evidence of a on ground floor of Mrs. Place’s home. earring Mrs. Place’s two buttons from her sweater were found there. Several articles clothing of her and the scissors that defendant utilized to cut Mrs. Place’s clothes were also found on that floor. The cuts Mrs. straight, Place’s clothes were suggesting that Mrs. Place was not conscious when clothing. defendant removed her prosecutor reasonably also fatally inferred that defendant strangled Mrs. Place on the first floor. Both Shuster and the expert defendant’s strangulation possible listed manual as causes Furthermore, of Mrs. prosecutor’s Place’s death.5 allegation 5 Contrary argument presentation, to defendant’s in his Shuster did not rule strangulation out manual as a cause of death. said Shuster "the assault" was compounded by ligature strangulation agreed manual and and then that the plus strangulation" “total Although assault were the causes of death. derived down the basement stairs threw Mrs. Place that defendant gave evening misbehavior evidence. Defendant’s from the did not accidental- to believe that defendant prosecutor reason steps. Finally, we her basement ly Place to fall down allow Mrs. prosecutor to invite the reasonable for the that it was believe prop open the basement used the broom to infer that defendant door. offered reasonable
Therefore, prosecutor that the we conclude *43 commit presented and did not from the evidence inferences drawn during guilt-phase misconduct of this trial. any the
IV. Penalty Phase Issues OVERHEARD 1. RETENTION OF JUROR WHO INFORMATION REGARDING EXTRANEOUS
DEFENDANT jury conviction, the counsel moved to dismiss After defense argued sentencing. Defense counsel jury decide empanel a new to defendant’s reports about the trial mentioned that the media aggravated about separate charge sexual assault pending for during guilt phase. presented the no evidence had been which empanel to good cause existed trial court did not find The jurors individually to ask if agree voir dire the jury to new but did them with the articles or discussed any jurors the had read of family. or friends juror jurors, one questioning the
During process the of murder discussing a overheard co-workers reported that he had defendant. County may have involved in Middlesex case jury convicted defen- days after the place took four conversation jury would opening the that Shuster’s testimony statement told in his prosecutor strangulation thereafter death, of he shortly as the cause manual identify strangulation and assault caused stated that Shuster would testify accurately Mrs. Place’s death. capital dant of murder. The court asked if that conversation fair, “ability would affect his impartial” juror to be to be and the responded that it would not. Where the court concludes there is a realistic that information possibility with the prejudice right defendant’s a fair capacity trial have reached members of may
jury, it should conduct a voir dire to determine whether has any exposure knowledge extra-judicial occurred. If there is indication of such any exposure information, the court should those question order to deter- individually mine what was precisely learned, and establish whether are they capable fulfilling judge their the facts in an duty and unbiased impartial manner, based on the evidence strictly court. presented II, 112 N.J. at
[Bey 86-87, 846.] 548 A.2d supra, The trial promptly juror’s court corrected the mispercep tion that another murder charge against defendant existed. The emphatically juror court told the that defendant had never been committing accused of another murder and that defendant was not subject juror the conversation that had overheard. juror Once the court established that the could remain fair and impartial, no further questioning by attorneys transpired.
The trial court’s conclusion that it did good not have cause to juror remove from support record; thus, has in the the court did not by abuse its discretion retaining juror on the jury. *44 2C:ll-3c(4)(f) (ESCAPE
2. SUBMISSION OF N.J.SA. DETECTION) AGGRAVATING FACTOR penalty At the phase, sought the State had to establish the c(4)(f) escape detection c(4)(g) felony and aggravating murder murder, factors. evening On the of police the the sought to arrest assault, defendant for an unrelated sexual but managed he to flee from his home before the officers could handcuff him. The trial precluded court the attempting State from prove escape- the detection theory factor under the that defendant murdered Mrs. Place to apprehension avoid for the unrelated sexual assault. Consequently, alleged the State that defendant murdered Mrs. Place to avoid apprehension for the crimes he had committed house, within Mrs. including theft, Place’s burglary, robbery,
619 the Five the twelve found aggravated sexual contact. e(4)(f) aggravating factor. c(4)(f) finding key to factor is the defendant
“The
potential
to his
State v.
intended to eliminate a
witness
crimes.”
(1993)
I).
Martini,
131
witness or avoid for apprehension prosecution subsequent
[Id. 1208.] at A.2d 619 282-83, the circumstantial evidence We believe State’s c(4)(f) aggravating defendant’s motive was sufficient to submit trial, jury. presented on the a rational factor to Based facts reasonably that one of defendant’s factfinder could have inferred escape murdering for the motives for Mrs. Place was detection home crimes committed within burglary of Mrs. Place’s or other 117, 225-26, Harvey, A.2d v. 151 N.J. her house. See State II)(holding circum presented sufficient (1997)(Harvey State support factor in residential- escape-detection evidence to stantial burglary-murder) . escape-detection aggravating
Defendant contends also unconstitutionally vague aggravating factor is or overbroad factor felony-murder duplicates the impermissibly in that the factor rejected impermissi previously factor. The has similar Court 224-26, ble-duplication Id. at A .2d596. claim.
Moreover,
essentially
“when
the same evidence is used
c(4)(f)
factors,”
trial
support
c(4)(g) aggravating
both the
v.
jury not
count
State
court must instruct the
to double
evidence.
II).
239, 268,
(1996)(Hightower
Hightower, 146 N.J.
620 event, any only jurors
In
of the
five
twelve
found the
e(4)(f) aggravating factor.
if the
“Even
trial court’s submission of
(f)
error,
aggravating
in
the error
factor
was
would have been
(f)
jury
aggravating
harmless because the
did not find
factor
II,
unanimously.”
502,
supra,
DiFrisco
that the trial court’s ultimate-outcome that instructed the jury sentencing not to consider its decision the likelihood that the defendant would receive consecutive sentences on the two committed, murders she jury was not reversible error because fully consequences decision, was aware of the specifically its choice death prison. between and life in jury choosing aWhen is between it death, life should not be misled into treating jury choosing one that the case as it is not. The should not that in be told between life and it not death consider fact that a may defendant forty-year-old is the next if its life. likely spend sixty verdict is Such an years prison holding
instruction conflict would with our Ramseur “hide from impermissibly range sentencing the full of its options.” In future courts should cases, what we mean when we explain say length of the sentences other than death not possible should influence the jury's concerning determination of a death sentence on a appropriateness murder count. (quoting [Id at A.2d 281 Ramseur, N.J. A.2d supra, 188).]
621 charge Although court’s in this the trial ultimate-outcome Nelson, charge suggested in the precisely follow the case did not a charge conveyed jury to that it was to decide between death the years thirty of a life with a minimum of sentence and sentence Moreover, given the ineligibility. counsel was parole defense argue never be released from freedom to that defendant would jury him to die. prison if the did not sentence Nelson, shortly This case was tried after our decision but Nelson, request charge. specifically not the Nelson counsel did to be told disre prospective we concluded that should not spend of his or gard fact that defendant would the rest her the to prison be told that fact relates deathwor life but should how prior charge at A.2d held that the thiness. Id. 281. We jury fully if was informed of the would not be reversible error the charge in was consequences of its this case similar decision. charge given the Id. at 715A.2d 281. in Nelson. complains provided the trial court the Defendant also that jury the mini with inconsistent and inaccurate information about as to a mum would receive an alternative terms defendant jury the Initially, death court told the alterna sentence. the. possibility imprisonment the of tive death would be life without trial, years.6 During parole sixty-three three-quarter the for however, an alternative court that the minimum term as the stated years. Although preliminary the thirty be court’s to death would final, did not constitute instruction was not the same as its it preliminary prejudicial jury court in the error. The cautioned years parole eligibility might be instruction that number charge, charge final as in his final and that court’s different parole disqualifier stated that the for well as the verdict sheet thirty years. murder purposeful-or-knowing life-sentenced was 2C:43-7.2, Act, that the Release N.J.S.A. The court believed No initially Early Act defendants serve to this case. The No Release Early requires applied eighty-five of violent crimes. least of their sentences for convictions percent against to the enact- Mrs. Place Because defendant committed crimes prior of the the law cannot be to him. Act, ment date and effective date applied jury period There is no evidence that the was confused about the parole ineligibility. The court’s were incon- instructions not so accepted sistent not have would as accurate thirty-year figure gave during that the court later dire the voir penalty-phase charge and listed on the verdict sheet.
4. ALLEGED PROSECUTORIAL MISCONDUCT
AT PENALTY-PHASE SUMMATION
A.
reviewing
In
capital prosecutions,
dismayed
we continue to be
by
frequency
prosecutor’s
the
lay “beyond
of
comments that
the
propriety.”
Marshall,
1, 160,
bounds of
v.
State
123 N.J.
A.2d
586
(1991)(Marshall I).
I,
example,
85
In Marshall
prosecu
for
the
tor
that “that
place
stated
there
hell for
defen
[was]
[the
Id. at
A.2d 85.
In Timmendequas, supra,
dant].”
586
the
prosecutor
“village pervert.”
referred to the defendant as the
Rose,
In
prosecutor
N.J. at
And you then verdict is life the imprisonment. going all of the [Defense counsel] Well, said she is not convince try you. ... state has to convince all you law. objected to this as a misstatement the Defense counsel “Beyond You left out replied: a reasonable doubt. The court outweigh ...” beyond Aggravating factors a reasonable doubt. had finished his prosecutor the court that he not The then assured had to all of that the State convince sentence and told the argument, closing beyond a doubt. Later in the them reasonable mitigating factors did prosecutor repeatedly that the asserted counsel asked the outweigh aggravating factors. Defense not jury prosecutor had misstated the charge the that the court to jury very strongly that the agreed instruct the law. The court outweigh mitigating factors. aggravating factors must respect jury with to the burden properly charged court State’s it specifically that must follow proof instructed *48 instructions, by as the apply and the law stated accept court’s court, if regarding the law disregard and counsel’s statements they the court’s instructions. conflicted with
Second, prosecutor jury during times sum- the told the several appeal its it to case without an to mation that had decide the on the could not make an emotional claim emotions and that State family. Although counsel did not the victim’s defense behalf of remarks, instructed the object the court nevertheless to these to on evidence without reference it must “decide this case the that except sympathy as conjecture any sympathy such and without any mitigating may inspire.” factor knowledge personal he also inferred that had prosecutor commented on one of defendant’s facts when he the relevant 2C:ll-3c(5)(h), the catch-all under N.J.S.A. mitigating factors factor, mitigating system that defendant’s school classified him as emotionally prosecutor disturbed. The asserted: suggest get tag I would to a lot of kids that you and start these home they study things
teams and Juvenile Bureau, Intervention and have all kinds of now to they get straightened kids out. that So don’t end a courtroom like this. help they up Finally, prosecutor’s physical the comments on the abuse that child, comparing corporal defendant received as a it to common punishment, present perhaps troubling the most issue in the ease. This Court has concern for We repeatedly expressed “prosecutorial propriety. again government have time said and that ‘because the the prosecutor represents and of the it is reasonable to that State, have confidence that people say he justice
will fulfill his to that see is done whether conviction of fairly duty by guilty during opening closing of the innocent.’ His acquittal comments and the full of the State. we cannot sit carry authority Hence, and condone idly by excesses.” prosecutorial (quoting [Frost, 87-88, 158N.J. at 727A.2d 1 v. State 64 N.J. supra, Spano, (1974)(citations omitted)).] 319A.2d 217 Specifically, prosecutor implied up- his own childhood bringing markedly was not different from defendant’s childhood experiences. summation, During prosecutor stated: suggest I would there should be no doubt in you mind that Mr. your Papasawas
administered to his kids. corporal punishment guess vogue I would some of I mean it’s not in probably you, since anymore suggest enough, Dr. hit the I scene, but would some of us Spock are old I probably know I am, to remember mom had a switch. corporal punishment. My She would get right one of those I switches and to it I didn’t like those hopped away. got long got I those switches a I switches, time. And had ftiends who father’s things. on them with belts and suggested Well, I’ve already sure that you corporal should punishment, get is you there no that kids a lot of upset question corporal punishment had a little different attitude towards life than [whose] somebody never parents lay gave a hand on them. There is no mother me that question. My switch and I get didn’t like and it hurt. I it, And didn’t until really I was like stopped thirteen old. But years the kids whose fathers whacked than them more mom my get whacked me around, were little less than I they trouble apt was, usually go get because didn’t want to home and it from they their old man. I mean I go get didn’t want to home and that switch, but spare rod, child, that *49 spoil book by Spock. or this, that’s there. But does that mean that this whole So, know, psyche you changed mitigates that it whole or his whole life to the extent his, his psyche, aggravating talking factors? I would lot what we are about here, whole suggest not. upbringing that the There a world of difference between a strict is in experienced upbringing and an abusive which prosecutor by post in and beaten his child is chained to a the basement small father.
B. on aggregate prosecutor’s effect of the misconduct ability receive a fair trial in this case must be defendant’s to carefully considered.
The standard for reversal based misconduct is well-settled upon prosecutorial of the misconduct and its the law. It an evaluation severity requires right long prejudicial to a fair trial. have held that effect on the defendant’s We grounds is not for of a criminal conviction unless misconduct reversal prosecutorial egregious “fair the conduct was so as to defendant of a fair trial. The deprive alleged guilt, misconduct in and trial” test to both applies prosecutorial penalty of a trial. phases capital justify conduct must have been “clearly To reversal, prosecutor’s prejudiced funda- and must have defendant’s substantially unmistakably improper,” jury right merits of his defense. mental to have a evaluate the fairly egregious determining were to sufficiently whether the comments prosecutor’s a fair we consider the tenor of the trial and the trial, responsive- defendant deny of counsel the court to the when occurred. they Specifical- ness improprieties counsel made a timely should consider “whether defense proper Court ly, objection, court was withdrawn and whether the whether the remark promptly, disregard instructed the ordered the remarks stricken from the record and them.” objection the remarks will remarks, if no was made to the improper Generally, objection prejudicial. to make a indicates timely not be deemed Failure prejudicial at the time were they counsel did not believe the remarks were defense object curative also the court of the take opportunity made. Failure deprives action. object, “[a] remarks and actions if counsel fails to prosecutor’s Even defense justice is with his or her to ensure duty must at all times be consistent stringently to this is duty compelled capital achieved.” Absolute adherence is death. cases where the penalty (citations omitted).] A.2d 55 575-76, 161N.J. at [Timmendequas, supra, especially offensive Although the Court considers upbringing, the comments were allusions to his own prosecutor’s *50 626 prejudicial deny
not so as to defendant a fair trial. Defense object prosecutor’s counsel did not to the statements. object opening Because defense counsel did not to of the remarks, any prosecutor’s or to other remarks now claimed to constitute many misconduct, prosecutorial defendant must demonstrate error to Plain error is “error plain prevail. possess- ing bring unjust a clear to about an result and which capacity substantially prejudiced right the defendant’s fundamental have evaluate the fairly
merits of his defense.”
(citations omitted).]
[Id. at 576-77,
“After
recognizing
record and
that some
prosecutor’s
nonetheless,
improper,
of the
remarks were
we are
fully
weight
satisfied ‘that it was the
of the
...
evidence
that led
capital
to this
murder
prosecutor’s
conviction rather
than the
improper
596,
comments.” Id. at
(quoting
V. Other Issues completeness record, For of the preserve we note and defen challenge constitutionality dant’s to the Penalty of the Death Act proportionality and the of his death argues sentence. Defendant that the statute narrowly fails to define death-eligible class of persons provide system meaningful fails to appellate review. Defendant first asserts that since this Court’s decision Ramseur, supra, Legislature and the Court have created new aggravating scope existing factors and broadened the factors statute, death-penalty under the thereby rendering the statute addition, unconstitutional. defendant system contends that the appellate eroded, given Legislature review has that the has right proportionality limited the review and the Court has affirmed though finding death sentences even numerous instances of trial error. the recent disagree with defendant’s assertion
We interpretations death-penalty of the statute has amendments and the Act is continue to “hold that rendered it unconstitutional. We federal Eighth under the Amendment to the Consti constitutional conclude, furthermore, the Act is valid under tution. We Jersey the New Constitution.” Rams paragraph [Article of] eur, supra, A.2d 188. 106 N.J. at *51 our appeal appeals this and other that arose before
Because
71,
Project,
Proportionality
in In re
Review
161 N.J.
735
decision
(1999),
place in later
proportionality
A
review will take
.2d 528
future, proportionality
In
review will be consoli
proceedings.
the
separate proceeding.
place
rather than take
dated
imposition
non-
challenges
also
of the
Defendant
excessive,
confusing. Defendant
capital
illegal,
sentences as
argues, and
term sentences. Defendant
received five extended
on all
agrees,
imposition
of extended terms
the State
the case
and that this Court should remand
counts was unlawful
perti
resentencing
noncapital
to the
of the
counts. Pursuant
for
statute, the extended term is
nent sections of the extended-term
fourth-degree
discretionary,
mandatory,
apply
and does not
to
not
(1988);
Martin,
10, 16,
Defendant also alleges that the court capital Specifically, defendant sentences. burglary sentence in violation of imposed the consecutive 643-44, 627, guidelines Yarbough, forth in State v. 100 N.J. set (1985). that the trial court could A.2d 1239 Defendant contends burglary were capital murder and the not have found that involving “separate acts of violence or threats of violence” crimes other,” predominantly independent of each id. at or “were aggravating factor found that the sole A.2d because killing impose penalty the death was the fact that the had used place during burglary robbery. taken the commission of a Finally, give defendant contends that the court failed to statement of the actual time defendant would have to serve before being eligible parole non-capital for on the counts and that there sentencing transcripts are inconsistencies between the and the judgment of conviction. These issues should be resolved at the resentencing required non-capital on the convictions.
VI. Cross-Appeal The State’s Claims cross-appeal, challenged In a the State the trial court’s refusal evidence, permit victim-impact conversely it to introduce its permission family plead to defendant’s for his life.7 Defen- responded they “scrupulously dant’s counsel had avoided” character, introducing any evidence of defendant’s therefore ren- Instead, dering victim-impact testimony the State’s inadmissible. they they simply presented testimony claim that of how he was abused as a child and evidence of his mental and emotional disturbance, asserting good without that he had a character or a *52 good record. capital sentencing juror
In individually each must de exists, mitigating termine each whether factor and then individual ly aggravating outweigh mitigating decide whether the factors the II, beyond Bey supra, factors a reasonable doubt. 112 N.J. at penalty only imposed 548A.2d 887. The death is if the unanimously agree aggravating outweigh that the factors the factor, mitigating mitigating factors. Ibid. One N.J.S.A 2C:11- 3c(5)(h), “[a]ny is defined as other factor which is relevant to the challenges ruling using The State also the trial court’s it from precluded (for defendant) sought the sexual assault which the to arrest prior police c(4)(f) ruling establish the factor. That was a escape-detection discretionary based on a lack of Place, notice, connection of that incident to Mrs. a lack of any prejudicial ruling. and the effect of We such evidence. would not disturb that character or record or to the circumstances of the defendant’s 5(h) Essentially, a catch-all factor of defen offense.” section is in mitigating encompassed evidence not the other defined dant’s statute, 2C:11-3c(6), victim-impact provides factors. The N.J.S.A. presents if of his character or record the defendant evidence 5(h), may present of the pursuant to section the evidence State background impact and of the of murder victim’s character and on the victim’s survivors. The statute then directs the the murder jury jury the that if the finds that the State trial court to inform beyond proven aggravating at least one factor a reasonable has factor, jury mitigating of a catch-all doubt and the finds evidence impact presented may then the consider the victim evidence determining appropriate weight give in the by the State catch-all factor. (1996), Muhammad, A.2d 164
In State v. 145 N.J. upheld constitutionality victim-impact of the statute and Court procedures implementation. set forth for its noted,
As
the statute both authorizes and limits the use
case,
victim-impact evidence.
this
the evidence of defendant’s
background primarily
mitigating
related to his defense under
e(5)(d)
capacity
appreciate
wrongfulness
factor
that his
requirements of the
his conduct or to conform his conduct to the
significantly impaired
law was
as a result of mental disease or
circumstances,
Although
generalized
reference to
defect.
other
c(5)(h),
might
scope
given the
a troubled childhood
be within the
involving an
emphasis on the nature of defendant’s condition as
defect,
organic
the trial court did not abuse it discretion
brain
victim-impact
apply.
not
ruling that the
statute did
life,
question
plea
of brief
for
it was within the
On
family
discretion to allow defendant’s
members to
trial court’s
pleas
“[g]iven
impermissible
inferences
make brief
for his life
mercy
might
plead
if
for
while
arise
a close relative did not
Moore,
478-80,
864;
testifying.”
supra,
VII. affirm defendant’s convictions. We also affirm his sentence We non-capital resentencing. of death. We remand the counts for J., LONG, dissenting. imposed by jury
This death sentence was
a biased
on tainted
otherwise,
majority
evidence. Because the
holds
I dissent.
I
Death-qualification
guilt phase
impermissibly
of this trial
Pappasawas’ right
impartial jury.
recog
to an
I
interfered with
nize that this Court has concluded otherwise under the federal and
Hunt,
330, 355-56,
state constitutions. See State v.
115 N.J.
(1989);
123, 149-50,
Bey,
A .2d 1259
State v.
112 N.J.
548 A .2d887
(1988)
Ramseur,
II);
123, 248-54,
(Bey
State v.
106 N.J.
524 A.2d
(1987).
compelled
my
right
I
feel
to state
view that the
to an
jury
impartial
protection
is entitled to broader
under N.J. Const.
¶I, 9,
counterpart,
art.
than under its federal
and that the state
requires
right
impartial
doctrine
fundamental fairness
to an
carefully safeguarded
to be even more
when a life is at stake.
Ramseur,
433-34,
(Handler, J.,
supra,
I am further satisfied that the death jurors; penalty punitive they are more than excludable are “less likely likely mercy, punishment to consider more to favor harsh as crime, reducing likely means and more to believe the strict consequences.” enforcement of all laws no matter what the See Ellsworth, Fitzgerald Robert & Phoebe C. Due Process vs. Crime
631 Death-Qualification Jury Attitudes, Control: and 8 Law & Hum. (1984).1 Behav. 31 1 e.g., Relevant social science data See, those supports premises. James Luginbuhl Middendorf, & Kathi Death and Jurors’ Penalty Responses Beliefs Aggravating Mitigating and Trials, Circumstances in 12 Law & Hum. Capital (1988); Eligibility Behav. 263 D. McShane al., et Service in Marilyn Jury for Question Bias, Trials: A Potential Capital J., Exclusion and Texas Bar April of 365; Michael L. Neises & Ronald C. Death Dillehay, Qualification Conviction Proneness: Witt and 5 Behav. Sci. & the L. Witherspoon Compared, (1987); Seguin, 479 Irwin A. Horowitz & David G. The Effects of Bifurcation Assignment Death on Crimes, in 16 J. Qualification Penalty Capital Applied of (1986); Soc. 165 Moran & John C. Comfort, Neither “Tentative” Psychol. Gary “Fragmentary”: nor Verdict Jurors as a Function Impaneled Felony Preference of (1986); Punishment, Attitude Toward 71 J. 146 Rick Capital Applied Psychol. of Seltzer et The Death on the Qualification Jurors to Propensity al.. Effect of of (1986); Convict: The 29 How. L.J. 571 Claudia L. Cowan et Maryland Example, al., The Death on Jurors’ Qualification Convict and on Predisposition Effects of (1984); Deliberation, 8 Law & Hum. Behav. 53 Phoebe Quality C. of al., Ellsworth et The and the 8 Law & Death-Qualified Jury Insanity, Defense of (1984); Craig Hum. Behav. 81 On the Selection Juries: The Haney, Capital of Biasing Process, 8 Law & Hum. Behav. 121 Death-Qualification Effect of (1984); Taking Kadane, B. A Note on Account Joseph Hovey: After of (1984); Jurors, Automatic Death 8 &Law Hum. Behav. 115 G. Penalty David Seguin Horowitz, & Irwin A. The “Death on Juror and Qualification” Effects of Decisioning: An Three 8 L. & Rev. Jury Analysis 49 Perspectives, Psychol. from (1984); William C. et Death Attitudes and Conviction Thompson Penalty al.. Verdicts, Proneness: The Translation Attitudes Into 8 L. & Hum. Behav. 95 of (1984); (1981); Associates, Inc., Louis Harris & No. 814002 Edward J. Study Bronson, Does the Exclusion Jurors in Cases Make the Scrupled Capital Jury of More to Convict? Some Evidence 3 Woodrow Wilson J.L. Likely California, from (1980); 11 al., Phoebe C. Ellsworth et The Punishment Attitudes Capital Effect of (1979)(unpublished); on Juror White, Witness W. Perceptions Credibility of Convictions, Constitutional Juries, 58 Invalidity Imposed by Death-Qualified of (1973) (citing Cornell L.Rev. 1196 Associates, Inc., L. Harris & No. 2016 Study (1971)); George Jurow, L. New Data on the a ‘Death on Qualified’ Jury Effect of (1971); Process, the Guilt Determination 84 Bronson, Harv. L.Rev. 567 Edward J. On the Conviction Proneness and Representativeness Death-Qualified Jury: of (1970); An Veniremen, Colorado 42 U. Colo. L.Rev. 1 J. Empirical Study Fay of Goldberg, Bias, Toward Expansion Witherspoon: Capital Scruples, Jury of Psychological the Use Law, Data to Raise in the 5 Harv. C.R.-C.L. Presumptions (1970);
L.Rev. Zeisel, 53 Hans Some Data on Juror Attitudes Toward Capital Chicago Punishment, Law School: Center for Studies Criminal University (1968); Wilson, Justice W. Punishment and Cody Capital Jury Belief Perfor- (1964)(unpublished). mance, of Texas University 632 Marshall,
Moreover,
there is “over
explained by
as
Justice
juries
substantially
qualified
are
whelming
that death
evidence
charges than
convict on more serious
likely to convict or to
more
punishment are
opponents
capital
juries
which unalterable
on
McCree,
162, 184,
Lockhart v.
U.S.
permitted to serve.”
(1986) (Marshall, J.,
1758, 1771,
dissenting).
L.Ed.2d 137
S.Ct.
*55
view
“From a social scientist’s
As one commentator observed:
juries
death-qualified
are
empirical question
point
[whether
guilt]
the issue of
has been
against
the defendant on
biased
al.,
Death
conclusively
R.
et
The
answered.”
Seltzer
of
Effect
Mary
Propensity
The
Qualification on the
Jurors
Convict:
571,
(1986);
People
see also
v.
Example,
land
29 How. L.J.
581
(1983)
680,
Fields,
329,
803,
Cal.Rptr.
P.2d
709
197
673
35 Cal.3d
(‘When
(Bird, C.J., dissenting)
an individual is accused of a
jurors
guilt or
noncapital
question
...
who decide the
crime
virtually
population of fair
are drawn from
the entire
innocence
community.
impartial, English-speaking adults in the
Howev
balance,
er,
hangs in the
the state alters
when an individual’s life
jury pool.
purposes
any
for all
is
adult who would
Excluded
though
person
fairly
for a death sentence even
could
not vote
innocence.”).
guilt
question
decide the
by the
fact that
empirical
That
data is exacerbated
troublesome
through death-qualification encompass
higher
excluded
remaining
African-Americans than the
percentage of women and
Fields,
803,
(Bird,
pool.
supra,
Cal.Rptr.
683
Moreover,
death-qualified jury
use of a
guilt phase
at the
paramount
imposition
“makes
penalty
issue of the
of the death
itself,
suggesting
guilt
thus
that the
of the
foregone
defendant is a
conclusion----
transcript
One cannot read the
of death-qualify
ing voir
proceeding
dire
without a
impending
sense of
doom.”
II,
Bey
supra,
192,
(Handler, J.,
112
at
N.J.
death-qualification
purported
is the
prosecu
state’s
interest in the
torial
single-jury
convenience of a
bifurcated trial. The Court has
position
rooted its
on that issue on
Supreme
the United States
Lockhart,
162,
Court decision in
supra,
At the
I
adopt
would
expressed by
the conclusions
Ramseur,
333,
Justice
in
supra,
O’Hern
II
at
errors occurred
that a series of
majority concedes
my
them as harmless.
trial
characterizes
Papasawas’
but
place in death
view,
very
error has no
notion of harmless
45,
Bey,
v.
112 N.J.
Indeed,
106-
in State
jurisprudence.
penalty
I)
(1988)
(Handler, J., concurring), Justice
(Bey
[Id. at
548A.2d
115-16,
and Abuses Death
Knudsen, Comment,
Qualifica
P.
Inequities
See Donald
(1987) (encouraging courts to
281, 292-98
Cures,
32 S.D.L.Rev.
tion: Causes
jury
guilt
attend,
that will
but not
seat
prior
phase
separate death-qualified
needed);
sentencing
guilt
if
Robert M.
then undertake
phase
participate,
Little Rock
Juries, 8 U. Ark
the Dilemma
Death Qualified
Remedies to
Berry,
(1986)
(suggesting
new
that courts seat
479, 501
entirely
death-qualified
L.J.
phase);
guilt
Hunt,
see also
then use
summaries
for
stipulated
penalty phase
(Handler,
(advancing
dissenting)
J.,
396-402,
The State should be to show reasonable required beyond is not of constitutional there was no realistic likelihood dimensions, jury’s arising prejudice affecting the from the error. Absent deliberations the error is of constitu- the error must lead to reversal. Where demonstration, elevated____ further tional however ... the substantive test must be dimension, arising that a whether in a error, The State shall be show constitutional required had itself, of the “no effect” prosecution pre-penalty phase penalty phase on the the death sentence. determination impose (Handler, concurring.) ] 112 N.J. A.2d 846 I, 116, J., at 548 [Bey supra, first, scrutiny contemplates heightened Such a review record, second, assessment, in-depth heightened an under the 117-18, standard, presented appeal. all errors on Id. at 548 344, 846; Koedatich, A.2d see State v. N.J. A.2d 939 (Koedatich I) (1988) J., (Handler, dissenting). “heightened record, scrutiny acting stringent with the of the combination reversibility, protective less tests for de standard for eliminates error, ‘plain termining reversible such as error’ ‘harmless ” I, (Handler, J., Bey supra, 112 A.2d 846 error.’ N.J. benefit test is concurring). The of that *58 636 it court the case as a each error Thus, the see whole. requires appellate assessing in
identified in the Court’s
of the record is
evaluated
analysis
critically
prejudice
its
on
for its
both for
individual effect
deliberations and
effect on the
of
entire case.
structure
the
[Ibid,]
I,
253-56,
supra,
See
Ill
Jury
is one
stages
capital
selection
of the most crucial
of a
trial.
purpose
jury
“The
of voir
impartial
dire is to ensure an
and a fair
515, 599,
Timmendequas,
trial.”
161
State v.
N.J.
justice and on its verdict elementary must be obedient to the court’s principles
637 charge legal based on evidence before it and from solely produced free entirely taint of extraneous considerations and influences.
[Wright (1957).] v. Bernstein, 23 N.J. 284, 294-95, 129 A.2d Thus, “the triers of fact nearly impartial must be as as the lot of I, humanity supra, will admit.” Williams N.J. 459 A.2d (internal omitted). quotations “repeatedly This Court has stressed that the need for impartiality heightened *59 is in cases Harris, in which the defendant faces death.” v. State 156 N.J. 122, 162, (1998); I, 716 A.2d supra, see also Williams 93 N.J. 61-62, 459 A .2d641 (concluding right impartial constitutional to jury “is protection entitled to the most zealous in the context of a prosecution criminal in which the penal defendant faces the death ty”).
A. process entirely of voir dire is not an random one in which the trial court is free methodology to invent a new as each ease sure, tailoring necessary arises. To be is but not out of whole cloth. There are fundamentals that have been established and by every must be abided in case. example,
For
begin
the trial court
capital
must
the voir dire in a
by outlining
case
our
penalty
jurors.
death
potential
law to the
Williams,
393,
(1988)
See
v.
State
113 N.J.
412 n.
separates penalty the use phases, and mitigating during sentencing jurors factors” scheme will enable all to potential concerning answer the death questions free of penalty misconceptions faulty concerning how the law is assumptions administered this state.
[Ibid,.]
Giving prospective jurors an understandable definition of death-
eligible murder is
parlance,
essential because
common
mur-
“[i]n
killing
der and
interchangeable.
are
Murder as used in the
system
precise
criminal-law
meaning,
capital
has a
murder is
narrowly
even more
Biegenwald,
circumscribed.”
v.
State
1, 42,
(1991)
IV).
N.J.
The exacerbated the effects failure to define death- by eligible typically neglecting up venireper- murder to follow on responses sons’ with a clarification that alleviate their would misunderstandings. excerpt following the voir dire of The from an example: Stella Policare is
THE eases Now, COURT: can think where would not you any impose you That’s That is I death an unfair difficult penalty? question. very question. know well, don’t there be someone. may that — JUROR POLICARE: If someone murder— accidentally THE COURT: National news —huh?
JUROR POLICARE: I’m If someone someone. murdered sorry. accidentally point, subject: At that court moved on to another feelings THE Let me I COURT: ask this. Do have at don’t care you you any all, vague might how are that be more the death they not you apt impose penalty religious religious because feel some you have some compunction, belief that you against militates it? JUROR POLICARE: No. exchange,
As can be seen from that the notion of accidental murder unchallenged throughout was allowed to float the voir dire process. questioning The court’s typical. of Policare was Out of many potential jurors issue, only confused on that it told one that thing “there is no such as accidental murder.” That error allowing potential juror had the effect of present himself or open-minded when, fact, herself as penalty on the death only crimes for impose which he or she would not the death penalty death-eligible were not place. in the first result, prospective jurors
As a may misapprehended well have penalty our death having misapprehensions law without their come light. jurors said, may Potential have based an on honest belief, they could sentencing Papasawas consider to life imprisonment, fact, they when in only could consider a life sen- tence for actually homicides that are not death-eligible. Those prospective jurors, though appearing death-qualified, may to be qualified not capital have been to serve on a case.
B.
absence
an understandable
capital
definition of
murder
only deficiency
was not the
in the voir dire. We have held that
when a
charged
defendant is
with
capital
both sexual assault and
murder,
imperative
it is
prospective
the trial court ask the
they
whether
could
mitigating
during
consider
evidence
penalty phase
they
even if
convicted defendant of such abhorrent
IV,
Biegenwald
supra,
crimes.
counsel
court
jury panel
fairly
could
undertake its role in this case.” We
merely asking
venireperson
each
whether
further concluded that
murder,
charged
aggravated
fact that the
was
with
defendant
assault, robbery,
burglary
influence his or her
sexual
would
416-17,
sentencing
inadequate.
decision
Id. at
C. addition, I-believe the trial court error committed reversible by denying Papasawas’ challenges prospective for cause of three jurors. Although jurors, Papasawas peremptorily struck those op Papasawas’ the error was harmful because that sat impartial. case was not
1.
majority
reject-
the trial
it
concedes that
court erred when
Papasawas’
Shampaner
challenges
ed
of Bette
and Ira Leslie for
584-85,
Shampaner
Ante at
I agree
cause.
During questioning, Applegate defense counsel’s volunteered that, consideration, ability after due he was concerned about his to impartial. following exchange be The place: took anything Is there think Q: we haven’t asked think would you you be yet you deciding going jury? to us whether or not sit
important were to on the you thought leaving A: One of the I about after here last I questions Tuesday, thought answered the on the as as I it was at the time questions survey truthfully age I because didn’t relate it to was simply circumstance, and that of the my age being right age. victim or of someone That’s at mother’s I sixty-four. my I don’t know whether can draw a clear line two. I think I between the would wind although I wouldn’t tend associate some of that. up, to, might Let ask this. me Are fearful that somewhat Q: you you impair your asking to be in the case? I’m not ability but impartial you future, predict sitting here do think that’s a real now, you possibility? guarantee A: I can’t it wouldn’t I think it be. could be. just I ask in all can now Q: candor, tell us think that’s you you you probably going things on the feel about when case? I’m impact way you decide the you
just asking for a candid I know can’t but don’t response. you predict future, think that see you may the case? impact upon way you A: I think I believe it it, if, could as one of the possibly, yes, especially in the there’s of the victim or questions survey said, crime scene I photos photos, think I would her to relate it. And that would be to Mr. think?
Q: detriment Papasawas’ you A: Probably.
Thus, Applegate impar- four times reiterated his concern over his tiality. prosecutor expressed incredulity Applegate’s then his position attempted get
avowed him to retract: You said because of Q: obviously mother would relate to this. Are your you you telling judge us realize from what you said that the state has to present guilt evidence that convinces you beyond reasonable doubt as to the defendant’s telling or there isn’t so are us any case, because of would sit you your mother-,you might age here and victim because the be that are see you may pictures, you telling though enough us even the state didn’t to convict this present proof just him defendant, would convict because he’s accused of a you anyway crime involving an old woman? response, and negative for a recognized the clarion call Applegate original misgiv- “no,” immediately his returned to but answered impartiality: ings his about judge, think I I think I don’t that, I able to but A. I would think would be fairly out. able to that relationship clearly
would be put forget fact that have a life and the you You can’t Okay. your experience Q. *63 age of the victim. mother somewhat Eight. A. judge in human fairly spite your experience? But would be able to you Q. A: I would think so. objection, qualified Applegate. Papasawas’ the. court Over jurors whose views on prospective The trial court must dismiss substantially impair the prevent or capital punishment would the trial court’s instructions performance of their duties follow Simon, 416, 465, A.2d 1 v. 161 N.J. 737 obey the oath. State (1999). death-qualify potential Conversely, a trial court should substantially impaired by jurors prevented or who would not be See Rams performing from their deliberative duties. their beliefs 249, eur, supra, at 524A.2d 188. 106 N.J. jurors say they potential who would
The court must excuse
if
convict
automatically impose a death sentence
the defendant is
II,
438-41,
murder,
supra,
Moreover, Applegate
categorically
never
stated
he could be
impartial.
impartiality,
In his most forceful assertion of his
dragged
by
prosecutor,
him
out of
he
“I
think
answered would
Applegate
unequivocal
so.”
raised clear and
reservations about
times;
age
his own
separate
bias based on the victim’s
five
he did
not, by stating
fairly judge
that he ‘.“wouldthink” he could
case,
qualified
evidence
demonstrate that he was
to serve on
Leslie,
Papasawas’ jury.
Shampaner
majority
Like
who the
*64
acknowledges
seated,
improperly
Applegate
were
was not “as
I,
nearly impartial
humanity
as the lot of
will admit.” Williams
(internal
60-61,
supra,
93 N.J.
at
quotations
2.
recently
We
stated that the
juror
erroneous failure to remove a
for
is
cause
reversible error if the defendant
“(1)
(2)
fading
juror
shows
that the trial court erred
to
for cause;
remove
that
by
juror
was eliminated
the exercise of defendant’s
question
by
peremptory
(3)
challenge
challenges;
and that defendant exhausted his
at
least
peremptory
remaining jurors
jury
juror.”
one of the
that sat
was a
on the
partial
(1999) (quoting
[State v. Simon,
DiFrisco,
161 N.J.
A
right
impartial
has a constitutional
to an
(1997)
Harvey,
v.
117, 210,
See State
151 N.J.
jury.
Because the cause, indisput- Papasawas because Applegate for Leslie and sentence peremptory challenges, his death ably exhausted his my impartial jury sat on his case. upheld unless an cannot be impartial Papasawas’ fate was not opinion, the decided thus, and, must be vacated. his sentence Patel, Shilpaben one of the twelve who The voir dire of die, him Papasawas and sentenced failed establish convicted jury question- impartial. Patel had answered she was asked prior expressed the voir dire and bias. The court naire response: her about her written that the fact victim was 64 years stated in the Now, Q: you questionnaire, juror? age, might fair Is there reason any why to be a your ability would impair juror? a fail-
that would to be your ability impair answered: She
A: I don’t know. colloquy following ensued: No?
Q:
A: I don’t know. Might that have been a mistake?
Q:
A: It could be. anything age that Is there about the bothers
Q: you?
A: I don’t know. You know? don’t
Q:
IA: don’t know. evasion, questioning pursuing that the court ceased Instead of age. altogether pertaining about Patel’s attitudes to the victim’s pursued No one else that area. *65 subject the attor-
Ultimately, changed the when one of defense neys up on the court’s voir dire: followed damage, as a result of a if heard that Peter suffered brain Well, evidence, Q: you behavior, that of his that controls was accident, brain,
bad motor vehicle part damaged, mitigating might would that be the kind of lead to information, you the life in as to the execution? impose prison opposed right
A: I cannot decide now. regarding consider it? Would Would listen the Q: you you testimony damage? mental A: Uh-hum. just it, And then consider think about it? Or would dismiss it out of Q: you I I hand, and don’t don’t want to hear of those mental defect say, care, any
reasons? His conduct led to death woman, of this he should be to death? put just right A: I have to listen. But I cannot answer I will think, away. you know. And consider the information that comes to at that of the trial? Q: you phase A: Uh-hum. attorney subsequently supplemented other defense his col-
league’s questioning: get If we ... will have found he committed both Q: penalty phase the murder and the sexual assault of woman, home, her while he 64-year-old being
inwas her home with no business there. might, finding, if Would be the of case where made that feel type you you that death was for such an individual. definitely appropriate punishment right A: I don’t know. I have to think. I cannot now what to do. say answers, Despite repeated Patel’s evasive and noncommittal qualified trial court her. important
It
is
“I
understand that Patel’s
don’t know”
questions regarding
answers to the
her
about
attitudes
the vic
age
impartial. Significantly,
tim’s
do not indicate that she was
she
questionnaire
directly
never disavowed her answer in the
age
impair
ability
impar
stated that the victim’s
would
her
to be
Harris,
supra,
(excusing
tial. See
brain
answered,
sentence,
right
“I
now.” After she
cannot decide
she
evidence,
mitigating
defense counsel
said she would listen to
out of hand and sentence
if she would dismiss that evidence
asked
reiterated that she would listen to
Papasawas to death. She
just
right away.”
replied,
“But I cannot
answer
evidence
attorney
Patel if she felt that death
the other defense
asked
When
crime,
appropriate punishment
alleged
definitely the
for
was
say
I
responded, “I
know.
I have to think.
cannot
Patel
don’t
right now what to do.”
majority
open-
indicate her
concludes that Patel’s answers
598,
Ante at
so. Defense
mindedness. imposing capable was a life counsel asked Patel whether she sentence, only she would do so. It is the latter not whether which, question right “I cannot decide now” would have been an Illinois, 510, Witherspoon v. appropriate answer. See U.S. 391 1770, 21, 776, n. 21 S.Ct. 522 n. 1777 n. 20 L.Ed.2d 785 (1968) (“[A] juror say prospective expected cannot be in ad he in fact vote for the extreme vance of trial whether would him.”). counsel, however, penalty Defense in the case before open might Patel if had an mind—whether she sentence asked she qualified Papasawas imprisonment. to life order to be to serve case, juror question in capital prospective must answer that on fairly Being willing the affirmative. able and to consider both a prerequisite life and a death sentence is a for death- sentence II, supra, 438-42, Williams 113 N.J. qualification. See By stating Papasav A.2d 1172. that she could not decide whether sentence, mitigating might her for a life vas’ evidence lead to vote Papasav qualifications Patel did not demonstrate her to serve on jury. Although vas’ she said that she would listen to and consider abstract, Papasawas’ mitigating in the never stated evidence she capacity Papasawas life whether she had the to sentence imprisonment regard him or whether she would sentence to death mitigating less of the evidence.
Thus,
juror.
impartial
there is
evidence that Patel
an
no
was
II,
supra,
(“Despite
See
Because the trial court
for
challenges
prospective
eause
three
who were not death-
qualified, Papasawas
peremptory challenges; con
exhausted his
sequently,
juror
impartial
who was not shown to be
sentenced
Thus,
Papasawas’
him
I
to death.
believe
death sentence must be
IV,
43,
Biegenwald
supra,
reversed.
3.
improperly
Papasawas
peremptory
The trial court
denied
two
challenges by granting
challenge
an
extra
to
State without
mur-
proportionally increasing
challenges.
the number of his
-
cases,
peremptory
der
“the
entitled to 20
defendant shall be
challenges
peremptory
...
chal-
State shall have
discretionary
lenges____
judge
authority
The trial
have the
shall
proportionally
peremptory challenges
to increase
number
3(d).
available to the defendant and the State.” R.
When the
1:8—
discretionary authority
give
court used its
an extra
State
strike,
obliged
grant Papasawas
two
peremptory
it became
challenges.3
by
providing
It erred
not
peremptory
additional
majority
Papasawas
any supplemental strikes.4 The
con
with
However,
Papasawas
it concludes that
was not
cedes that error.
perempto
for an additional
prejudiced by the denial of his motion
604-05,
disagree.
Ante at
ry challenge.
court’s bottom given impartial jury to determine his cause. Had the court Papasawas peremptory challenges the two additional to which he entitled, undoubtedly have Patel from the was he could struck jury.
IV Portnow, Stanley appear at trial was Dr. The last witness to degree. He was called to rebut psychiatrist who also holds a law legally from a Papasawas was insane and suffered evidence capacity he Place. Much of Port- diminished when killed Mrs. majority testimony, which is set forth in some detail in the now’s ante, 64-67, 610-13, opinion, 751 A.2d at was inadmissible and sufficiently prejudiced Papasawas’ require it case so as to overall a new trial. was, testimony appreciate pernicious Portnow’s
In order to how Papa- Papasawas’ exact nature of defense must be recalled. he tried to render Mrs. Place uncon- sawas claimed that when hold,” by putting “sleeper passed in a out and scious her she stairs, breaking accidentally fell down the cellar her neck. There- after, feigning Papasawas thought might Mrs. Place be because death, gagged he her with a belt. Still unsure of whether Mrs. preparatory steps threat- pretending, Papasawas was took Place her, sexually hoping to trick her into acknowl- ening to assault might have edging that she was awake. As slim a reed as addition, been, Papasawas’ only factual defense. it was *69 testimony regarding Papasawas’ severe presented expert defense claimed) (it incapable him of organic damage, that rendered brain Place; knowingly in Mrs. acting purposefully or his encounter with legal insanity. presented it also evidence rambling monologue improperly attacked those de- Portnow’s again again and not that fenses. He was allowed to assert purposefully knowingly, Papasawas capacity had the to act or testimony point and which would have which was the of his been Papasawas actually purposefully had acted proper, but that night Place died. Portnow was allowed to declare that that Mrs. Papasawas had been as a child. he did not believe that abused credibility. Papasawas’ to overall Most He was allowed attack egregious, highly to but he was allowed attribute unsubstantiated incriminating thoughts Papasawas. expert, psychiatric
As a Portnow’s role was to contribute a opinion Papasawas capable forming scientific on whether was necessary (purposeful knowing) capital mental for state or murder, prevented a mental that him or whether he had condition distinguishing understanding from the nature of his acts or be- wrong. by stating fulfilled that role right tween Portnow Papasawas capacity pur- to form did not suffer from diminished intent, any pose type or from of mental condition that would appreciate deprive capacity him of the to know or the nature of his they wrong. acts or to know were there, however, stop proceeded inject He did not but into the personal opinions happened night case his own about what stand, Mrs. Place died. Before Portnow took the defense counsel preclude repeating him asked the court to from a statement that report prosecutor he had included in his to the that said: him When the deceased and he realized that she would call the happened upon stealing he killed her and assaulted her before her credit cards and police, sexually car keys. argued improper opinion an Defense counsel that was on the Papasawas’ guilt ultimate issues of or innocence. The trial court objection prosecutor overruled the but directed the to rein in Instead, Portnow. Portnow was allowed to launch into a discourse objected verbatim; including portion report he his prefaced opinion exactly Papasawas it with his that “Mr. knew doing.” what he was *70 decide, on the Portnow —to based for the
It was —not Papa- concerning capacity, mental whether his competing evidence doing” he killed Mrs. exactly he when “knew what was sawas knowingly. Place, is, purposefully her or that he killed whether Instead, proffer allowed to expert garb, Portnow was cloaked opinions himself. those ultimate night the events of example, when Portnow summarized
For exactly killed, what presumed to tell the Place was he Mrs. stage events. mind at each of the going Papasawas’ on in was testimony information learned from Although his reflected some of with portions were at odds Papasawas, with other his interview Papasawas cut Mrs. example, he said that that information. For engaging in a sexual “express purpose” of Place’s clothes with Moreover, merely Pappasav- testify that he did not act with her. acted purposefully, but that he indeed capacity to act vas had way: that action____there nothing thought, goal-directed was impulsive.
This was a Papasawas’ mouth put words into Portnow then throw her doum the hold, I’ll her in a me, sleeper steps The woman can identify put organic acting out. People dead. This is not an impulsive she is not already if just premeditating organic damage like crime, of are still capable who have schizophrenics. philosophy criminal his own of Amazingly, Portnow then added mix: responsibility to the right go out and doesn’t mean have the you
Just because you’re schizophrenic as I have it recorded here. kill and the of activities someone type speech objected giving to Portnow point, counsel At that defense court, question. The who responsive any pending was not object to the “waiting” for counsel to it had been said testimony was testimony, jurors not that Portnow’s told the it expertise, that was beyond capacity but outrageously his guilty: Portnow’s, Papasawas if was to decide job, not their objection. minute now that I have an me for a Let stop you something. jury, got gentlemen I’ve been I’ve to tell you of the Ladies and gentlemen is listening tell us that this now for the last five minutes to this doctor job. job. charged You guilty everything That is with. That is not his your of he’s You’ve heard all of the testimony all of the evidence. are heard here, you’ve going gentleman guilty to decide whether this you’re is of the crimes any charged, job. not this doctor. That is not his He can tell us about psychiatric, cognitive state functions. That’s what he’s an mind, on. But he’s not expert guilty anything. going here to tell us that is That’s what Papasawas you’re decide. And I want to make sure that realize because sometimes we your are led an If the by believes it must be so. No. It will expert’s opinion. expert so, be *71 job guilty charges. your determine whether he’s of of these any testified, After Portnow defense counsel moved for a mistrial that Alternatively, was denied. he jury disregard moved to have the testimony except all of Portnow’s portions for that the defense might use in Noting summation. lawyer Portnow was a as doctor, argued well as a medical fairly counsel that the court could presume exceeding that he knew that he was the bounds. That was also denied. questioned Papasawas’ credibility,
Portnow directly both indirectly, repeatedly Papasawas stated that pur- had acted posefully Place; when he plainly conveyed killed Mrs. he that he Papasawas’ did not believe account of events. represent- He also Papasawas ed that had killed Mrs. Place to make sure she reported police, “never” him to the and that he threw her down the stairs to make Papasawas sure she was dead—intentions that acknowledged never having.
Insinuating
Papasawas
gave
lied when he
him his back-
ground information,
questioned Papasawas’
Portnow
credibility
by suggesting that he had
Noting
not been abused as a child.
Papasawas
report having
did not
“any
suffered
broken bones
welts,”
Portnow volunteered that
“discipline” imposed
on
very
him could not have been
Papasawas
severe because
had
continued to act out.
I
testimony
note that that
underscored the
prosecutor’s denigration
Papasawas’ past
major-
abuse that the
ity recognizes
“especially
625,
as
offensive.” Ante at
Portnow also
far
proper
expert
bounds of
testimony by presuming to
jury purportedly
psychi-
tell the
as a
—
atric expert exactly
Pappasawas
thinking
what
was
at each
—
stage
First,
of the fatal incident.
put
he Mrs.
sleeper
Place into a
hold,
“just
because he
wanted
reported
to be sure that she never
Second,
throw her down
he “decided” to
police.”
him to the
strangulation:
already dead from
kill
if
was not
her
she
stairs
nothing,
thought, goal-directed
in other
This
there was
was,
action.
This was a
in a
nothing
I’ll
her
me,
The woman can identify
put
was
impulsive.
words there
dead.
if she is not already
thrown her down the
hold,
steps
sleeper
in either the records
no
whatsoever
assertions had
basis
Those
Papasawas.
with
or his interviews
had reviewed
that Portnow
Yet,
expert
guise
in the
nothing of the sort.
Papasawas said
put
allowed to
overlay
importance, Portnow was
opinion
its
with
incriminating
that the
statements
Papasawas’
highly
mouth
into
totally unchecked.
trial court left
rules
short,
testimony
several fundamental
broke
Portnow’s
expert witness is to
The role of an
governing expert evidence.
Hyett, N.J.
speciality.
In re
insight
of his
contribute
(1972).
distinguish
“should
capacity,
In that
he
The concludes that appro- the court’s instructions were priate remedial measures. at Ante I A.2d 67. disagree. instruction, The first gave which the court toward the testimony, simply jurors end of Portnow’s they told the were Papasawas to determine if guilty was and that Portnow was not “here Pappasawas guilty to tell us if anything.” is instruction, second gave which the court guilt at the end of the phase, essentially was It jury same. told the that “some” of testimony Portnow’s opinion “seemed to indicate regarding his guilt accused,” so, or innocence of the improperly that it did disregard that the opinion Papasawas’ should guilt his you totality innocence “unless find from the of the evidence that you accept can you from other facts that can draw the same inferences and reach the same conclusion.”
Those instructions were deficient in several respects. critical First, they did not address improper Portnow’s comments and Papasawas’ Second, insinuations about credibility. they did not explain that Portnow’s limited role was to determine whether Papasawas capable was forming requisite capital intent for murder, not Third, whether he indeed formed that intent. distinguish instructions did not portions those of Portnow’s testi- mony proper that were Fourth, from those they that were not. did not ignore tell the Portnow’s statements that attributed thoughts or to Papasawas particular intentions on night. Fifth, and important, purported most curative instructions only point omitted the possibly that could have ameliorated the devastating testimony effect of Portnow’s clear unequivo- —a that, cal testifying, statement arrogated Portnow had to himself powers have, that he expressed did not “expert opinions” on *73 subjects over which absolutely he had expertise, no and was no more Papasawas’ able to determine imagine truthfulness or to his thoughts they than Only were. that kind anof instruction could deflate power the “expert Portnow’s simply status.” It was jurors ignore tell his That was
inadequate to the to conclusions. proverbial in the ignoring elephant the courtroom. like essentially Papa- improper testimony gave the lie Portnow’s potential effect on the was entire defense. Its sawas’ by court’s that not ameliorated enormous and effect was instructions.
V
trial,
guilt
having
potential
phase
to skew
Besides
penal
testimony
spill-over
a
on the
improper
Portnow’s
had
effect
ty
by supporting
aggravating
crucial
factor and undercut
phase
Erazo,
112,
ting
mitigating factors. See State v.
126 N.J.
several
(1991).
132,
His
reported
police supported
him
to make sure
never
to the
Place
she
detection;
finding
Papasawas
that
killed her
had
to avoid
however,
fact,
They were,
jurors
not told
five
found that factor.
unanimity.
disregard that
of their lack of
See
factor because
(1996)
Muhammad,
52,
(noting
State v.
145 N.J.
A.2d
finding
aggravating
jurors must be unanimous
existence of
that
they
limiting
trial
instruction
factor and
must adhere to
court’s
appropriate
and deliberate about
sentence without consideration
unanimous);
II,
aggravating
not
DiFrisco
those
factors that were
(“[T]he
death-penalty statute
supra,
Portnow’s unsolicited and against the really physically as a child militated was not abused due to jurors finding that emotional was Papasawas’ disturbance abuse, indeed, mitigating found factor that five that Further, inapplicable. attributions of intentional behavior his Place his claim Papasawas night on Mrs. died and against exactly doing” he militated Pappasawas “knew what was an extreme finding Pappasawas was under influence of jurors rejected factor. disturbance. Nine emotional *74 matters, To jury exacerbate when the court instructed the sentencing phase, gave it no instruction at all on Portnow’s testimony. merely jurors It that said could consider evidence presented phases jurors at both of the trial and that the could not aggravating any base an factor on experts “histories” that Papasawas. Moreover, obtained from the the court did not disregard remind the to opinion Portnow’s that Papasawas escape apprehension. had killed Mrs. Place to Portnow’s comments and the court’s silence had the clear capacity and, to affect the outcome of sentencing phase in all likelihood, Papasawas’ did so to detriment.
VI Place, against For his crime Pappasawas Mrs. Peter has been sentenced to die. The that made that determination was death-qualified predisposed and thus guilty towards a verdict and a majority death sentence. The concedes numerous errors during trial, Pappasawas’ occurred but concludes that those er- rors were harmless. appropriate Harmless error is not an stan- capital dard in event, any murder case. the errors occurred in this case were not crushing harmless but Papasav- to vas’ defense.
The trial erroneously qualified jurors; court Papasawas three was forced to peremptory exhaust his challenges remedy error; given he was him; not the two challenges extra due as a result, juror not impartial jury. Further, shown to be sat on the improperly permitted Portnow, the trial court “expert” the State’s witness, Papasawas’ state, to comment on credibility; to not that Papasawas capacity had the requisite to form the mental state for murder, so; actually mind; but that he did put read his and to highly incriminating Thereafter, words into his mouth. the court gave impotent an curative power instruction that lacked the ameliorate Portnow’s excesses. only Portnow infected not guilt phase penalty phase. but the Accordingly, I would reverse Papasawas’ conviction and death sentence. PORITZ and remandment —Chief Justice
For affirmance STEIN, O’HERN, GARIBALDI, COLEMAN Justices VERNIERO —6. *75 reversal—Justice LONG —1.
For