*1
Linda A. Attorney argued the respondent (Robert cause for Tufo, Attorney J. Del General Jersey, attorney). New opinion
The Court was delivered GARIBALDI, Justice. Thursday, February Perry
On Arthur went to a apparently second-floor of an bedroom abandoned house at 762 Camden, Jersey, inject Division Street New himself with Redd, fourteen-year-old acquaintance heroin. Jerome of Per- ry supplied Perry drugs, who often entered that room Perry inject drugs. ensuing before could himself with the encounter led to the death of Jerome Redd. defendant,
jury A Perry, convicted Arthur of the murder of appeals Jerome Redd and him He directly sentenced to death. right. 2:2-1(a)(3). to this Court as a matter of R. affirm We knowing defendant’s conviction of murder and related offenses. *6 proof Because find there we that was insufficient have aggravating submitted to the the factor described 2C:11-3c(4)(c)(“c(4)(c)”), imposition N.J.S.A. the of we reverse penalty. reason, death again For same court may no impose penalty the death Consequently, defendant. we remand the matter imposition to the Law for Division a term, life sentence with a thirty-year-parole-ineligibility pursu ant N.J.S.A. 2C:11-3b.
I 4, 1986, Perry On March killing following confessed to Redd brief dispute drugs, money, a over possible and a distribu- arrangement tion/commission Perry between and Redd. week-long investigation by confession followed a the Camden City Department County Police and the Camden Prosecutor’s Office. Discovery
A. The Initial Body Jerome Redd’s at 762 Division Street 2,1986, Sunday, Miller,
On March Perry Arthur Clark his estranged partner, homosexual called the Camden Police to report they body had found a dead of a basement by Street, home Perry owned located at 762 Camden. Division When, call, response to the Detective Beverly arrived several 1 p.m., minutes after Perry Beverly they Miller and told body right had found a in the rear comer of the basement. They Beverly then showed door the basement.
Beverly into carrying went the basement his service flash- light. darkness, Beverly the relative any- “couldn’t see thing,” despite flashlight. appeared What he could see rags. Beverly be then determining left basement without a body actually present. obtaining stronger
After flashlight Beverly returned to the dead, young basement where he found a male black of medium complexion an rapped “choker-style” electrical cord around body semi-sitting position, his neck. The was in a by covered blanket, partially hidden a detached screen door. After blanket, replacing partially which he had removed from the during inspection, Beverly victim his initial returned to the appropriate front of the house and notified the members of the police prosecutor’s ordering force and the office. After Patrol- secure, keep Beverly man Vernon Curtis to the area took Miller Perry police building interviewing. to the administration Subsequent Investigation B. The the Basement Division Street
Meanwhile, “appropriate police depart- members” of the *7 office, prosecutor’s Inspector Craig ment and the Milbury and Scully, responded Crime Scene Technician Paul to the crime directly basement, scene and Scully began went to the where scene, photograph physical collect evidence and sketch a diagram of the scene. presence
Because the of the electrical cord around the vic- suggested hanged, tim’s neck the victim had been Mil- bury’s investigation support focused on evidence to that cause of death. He found none.
Investigator Doyle County James of the Camden Medical Following report Examiners Office then arrived. his check-list form, inspected body. rigor jaw, he He noted mortis in the legs arms and and livor mortis in the back. Singh,
Dr. examiner Sunandan an assistant medical for Cam- County, autopsy, asphyxia by den conducted an which indicated strangulation manual as the cause of death. He also ruled out by hanging death hyoid ligature because the broken bone and upward marks that lacked an turn contra-indicated such a earlier, Although independent conclusion. this confirmed an by Inspector Milbury, unexplained conclusion it still left wrapped Singh electrical cord around Dr. noticed Redd’s neck. oddity: unusually eyebrows, another the victim had well-arched plucked. pink make-up if shaved or He also had as around his eyes. Subsequent Investigation In and
C. Other Areas Around
762 Division Street station, transporting Perry police After and Miller to the Beverly neighborhood Detective canvassed the around Division polaroid photo Street with a of the victim in an unsuccessful identify someone could effort find who the victim. Inspector Milbury surveyed the rest of the house. He found except empty, unplugged refrigerator. the first floor for an sparsely The second floor had two furnished bedrooms. One of appearance” the rooms had “a or transient lived-in and con- residue, glassine bags powdery plus tained blue with a white drug paraphernalia, including spoon, syringes, a burnt two pumps. Milbury two also discovered forms and insurance paperwork bearing the name Clark Miller and the address 1189 Avenue, Landsdowne Camden.
D. Perry Concerning Statements Arthur the Police In-
vestigation Between March when authorities were first notified discovery body, of the victim’s and March when *8 Perry killing Redd, police confessed to Jerome officers or prosecutor’s Perry members of the office interviewed four Although repeatedly right times. defendant was notified of his right counsel, to remain silent and his he volunteered his time, seeking assistance each quickly to resolve that matter as possible. developed as Because inconsistencies between his among statements and those of Miller as well as his own statements, Perry authorities separately interviewed Miller and sought additional evidence further to corroborate or dis- story credit the of either one.
1. The Initial Interview at 762 Division Street After Beverly transported Detective had Perry and Miller to police administration building, Inspector Milbury, who had charge investigation, taken question decided to Miller Perry at the scene. The two were returned for that purpose.
Perry Inspector told Milbury that he owned the house and that he and Miller had body discovered the making while one of periodic their checks for vandalism. He stated they had Sunday 2nd, arrived March p.m. around 1:00 and had noticed ajar. the front door they house, When entered they discov- ered that the basement door had been nailed Perry shut. said they pried open basement, the door and went into the they where discovered that a screen door had been moved and seemed to “something cover stashed.” Because of the dim lighting basement, in the Perry reached out and felt a human cigarette knee. Miller then lighter provide lit his illumina- tion and confirmed that there body. Milbury was a asked Perry and they Miller if identity knew the of the victim. Each said he did not.
2. The Later Interview at the Police Administration Build-
ing After the Street, initial Perry interview 762 Division Miller were taken back Building to the Administration separate by Inspector interviews Milbury, during previ- which ously unknown facts and light. further inconsistencies came to inconsistencies, When informed of the each volunteered to take polygraph test. Perry given test, Before could be he terminated the interview, promising day instead to return the next to submit to the polygraph. He stated that he wished to confer with coun- sel.
3. The March 3rd Interview Perry Building When returned to the Administration on Mon- 3rd, day, March he stated that he proceed wanted to with the polygraph test. He had not attorney. communicated with his During pre-test Perry interview revealed that he and Miller relationship victim, had a homosexual and that he knew the Jerome Redd. This conflicted with his earlier statements to Milbury. Perry also stated that the house at 762 Division had purchased “shooting gallery,” i.e., been for one dollar as a place drug inject up” drugs. for users to or “shoot Perry repeated story checking about for vandalism. He added gone 2nd, had Sunday, that he also into the house on March inject drugs. According outside, Perry, Miller waited enter- ing only Perry investigate when called him in to boarded-up door. suspicions Perry’s
His aroused appearance because of behavior, polygrapher Perry drugs. asked if he had taken receiving response, test, On an affirmative he terminated the left, which was then following day. Perry scheduled for the accompanied by Miller.
Thereafter, Morton, Milbury interviewed high- Robert a local Street, school teacher who lived on Division and two of his pupils, Hunt, Troy Todd Lewis and both also Division Street victim, residents. The teacher stated that he knew the Jerome Redd, drug frequented shooting be a dealer who gallery at 762 Division Street. He also mentioned that he had informa- Perry tion that on occasion allowed Redd to borrow a maroon Buick in exchange drugs. The vehicle was later identified as Miller’s boys they car. The two stated that had been building Perry Friday, 28th, Division Street February they helped and that had him fix the lock on the front door. They also They had watched him nail shut the basement door. differed present over whether Miller was while the door was being was, nailed shut. One said that he while the other stated just that Miller Perry completed arrived after had the task. *10 boys This information from the directly Perry’s contradicted he assertion that had found the door up. boarded 4. The March 4th Interview
Perry polygraph was scheduled for p.m. a test at 2:00 police March 4th. The had assumed that he would arrive with Miller, who also for polygraph scheduled a that day. Perry, Miller police When arrived without asked Miller to Perry bring find and him back. Miller returned at noon with- Perry. out Inspector Milbury
Miller informed and Beverly Detective that Perry to would come pur- station until after he had drugs. and Realizing Perry’s chased used drug use would postponement twice-delayed cause another polygraph, Milbury Beverly Perry and set out to find before he could purchase drugs. looking or use After unsuccessfully at several drug-dealing locations, they known Camden drove Miller’s they spotted Landsdowne Avenue address where Miller’s station, Knowing police car. Miller to be at they stopped to look for Perry.
Entering through door, partially-open Milbury and Bever- ly Perry top saw although the stairs. He said that he supposed knew he was to taking be at detective bureau polygraph, a to prior he wished “mellow out” to the interview. if drugs. He asked the detectives he then inject They could drugs, said “no” spoon and confiscated the a and a hypodermic needle. possession drugs
While under arrest for unlawful of those Perry the paraphernalia, stated that he nonetheless wanted previously-scheduled to continue polygraph test be- being cause he “wanted clear himself.” After taken to the purpose, Perry again through detective bureau went interview, pre-test repeated basically which he the same story given. he had previously James Bandock of the Camden County polygraph Prosecutor’s Office then conducted the exam- parlance,
ination. he lie common “failed the detector test.” Perry told examiner the results. Perry changed story then several ways. times several agreed give taped then Beverly He statement Detective statement, Inspector Milbury. In that he confessed to killing Thursday, February Redd on Jerome 1986. to me Arthur, will describe Q. own words what Okay, you your exactly you concerning know the commission this crime? A. There was a over monies. He and the he worked for was dispute people trying drugs get drugs charge so I me to distribute could have free of *11 knowing to make them them that I didn’t need money. By that, pursued they coming job, coming give drugs. around around our home, to me On that got jail, Clark when me out out of and Thursday prison, bailed me out, young give man came around to the home with two bundles to to me both try got of them so I sell some for him. could When I to we and, so, resisted do argument. into an I to did not mean kill man this [Jerome Redd]. ******** grab grabbed He stood as tall as I so I to did, had him. I him in the fashion locking that I learned in Marine and him. we neck, When Corp., fell, grip strangled got him pressure He my for few obviously. limp rage trying get then minutes, he broke out into a as if he was to loose. I really guess losing that’s when he was life. I him his And held for another minute or just and so he he I died. searched his for collapsed; panicked, any body drugs, get weapons other took him to rid of his any downstairs, attempted camouflaged out of but it to I body was too do so my early so, place, body air-conditioning behind an unit in the basement. Didn’t want to touch his body given drug Iso took a cord that was and to me tied him and him the to area up camouflaged which he was and him found as much as I could. ******** again, argument how did Q. Now, this while and he were Okay. develop you in the residence? A. Over monies that that I had owed them. they say ******** Q. Now, was the Jerome the house victim, Redd, at that time? already just got anything A, A. he had came in before I even chance to do shortly with what I had. shooting drugs Were Q. in the ... you process your A. Yes. Even Q. when he came in ... Right. A. something he me he had
Um, told nice. Referring drugs? Q. drug. A. To the I said, let me do this and let me check what well, out you’ve got. And he know said, owe us I as far I you said, look, as you money. know all debts are He well, we can work I have my paid. said, that; around something bags get if for want to take it and four sell you you every you you if one for fuck us around, know can’t no yourself; you you be here more. you cursing I I don’t have to do said, all of know. He me that, started out you rage, just and, went into this little he came um, towards me as I was injecting and I took I even one, didn’t have a chance to call boot as they it, syringe and I took the out of me and I told I him, M.F., look better said, you got figuring back the fuck and wait until I what I could up do, pump enough in him to make him fear shut wait. It He up didn’t work. came something, at me had as if he that’s I searched him after what went why down. [********] thought gun something,
A he I had a or a knife or he weapon. cause was too gave anxious to come at me. I had And, um, before him a chance to do such, gave enough when he towards me walked cause its a narrow I him room, room get enough close me where when I he moved to side and pointed me, grabbed I him and threw him back me, over know. it was a um, you And, grabbed method I from the I learned Marine knee him, threw Corp. up my threw him down on it and him like locked that to restrain him. I seen kept And, gonna just rage that he wasn’t cool out and he broke into a scuffled and we a few. ******** just tight I held on to I And, um, him as as and he for a second. could, relaxed strangle thing I Now, know when first out. I you somebody pass they *12 gave assume that’s what I As soon as a little bit of is to let happened. leeway go. again strength him He on me broke and he had that I’ve felt before never go grabbed and I let him knew if I it was either me or him. That’s when I him grip go
with the and death didn’t let him for at least to a half a minute or thirty go. even a minute. When he had no him I more movement his I let body, something tongue I could see then that did didn’t want to do that I because sticking was out the side of I was dead at his mouth. don’t know if he puffed that time. I could life if I have saved his would have called Maybe police right and an I do that. I death ambulance, and, but didn’t was scared to away I searched him for a um, weapon. ******** gonna I did it didn’t mean didn’t know what to do by myself; it; happen I was scared killed afterwards. never life. death; nobody my confessing Beside to the method and circumstances of the killing, Perry things. admitted other several He described
taking money drugs and from the lifeless Redd. He also told basement, carrying Redd to the blanket, him in a wrapping tying neck, and an electrical cord around his thereby allowing drag body him to across the basement floor without touch- ing taking it further. He also sheepskin admitted Redd’s jacket selling and it to one of Redd’s friends. That admission corrobo- police rated information would later receive from Sir Walter Pitt, III, Alexander who had involving witnessed a transaction sheepskin Friday, February 28, coat on 1986. August On the Camden County Jury Grand re eight-count turned an charging indictment Perry with first-de murder, gree contrary 2C:11-3a(2) (count one); N.J.S.A. murder, felony contrary 2C:11-3a(3) (count two); to N.J.S.A. first-degree robbery, contrary (count three); to N.J.S.A. 2C:15-1 four counts of third-degree hindering apprehension, his own contrary 2C:29-3b, alleging N.J.S.A. that defendant had concealed, moved, disguised (count body four), the victim’s and had nailed shut the door to the body basement where was found and further had refrigerator barricaded it with a (count five); volunteering (count false police six); information to concealing the identity victim’s and manner of death from Miller, (count seven); material possession witness heroin, contrary 24:21-20a(1) (count to N.J.S.A. eight). After Perry pled had guilty, the State filed notice of its intent to seek the penalty death because of alleged presence of two aggravating factors, 2C:11-3c(4)(c)(murder N.J.S.A. involving torture/aggravated assault, evidencing or murder depraved mind), (murder 2C:11-3c(4)(g) N.J.S.A. committed in the course of a felony).
E. The Trial
1. The Guilt Phase Jury voir roughly days. dire lasted six court Under a jury” approach “struck questioned trial court and counsel jury panels. five Approximately fifty-four jurors were “death- *13 qualified.” process jurors’ included responses ato questionnaire questions written and to from the court. The questionnaire explored information, biographical inquired basic acquaintance jurors any whether the had with the or defendant counsel, investigated jurors’ past with, and contacts and to, relationship justice the criminal system. Questions from the probed deeply more by responses bench into issues raised to the questions written then jurors’ and examined the views on the penalty. process, death That coupled with peremptory chal- lenges, produced jurors guilt phase. sixteen for the
At the Perry conclusion plea voir dire entered a guilty of eight, possessing to count heroin. trial, basically
At the State related the facts described above. Additionally, prosecution played a thirty-six-minute audio statement, tape Perry’s parts the most salient of which are quoted Beverly, Milbury, Singh above. Dr. all testified to During guilt phase, the facts set forth above. the State theory defendant, up advanced the being fed with harassed associates, Redd and kill decided to Redd in order steal his drugs money. produced The State as a witness John Harris, Leroy who had shared a cell in the County Camden Jail Perry April 1986. Perry Harris testified that had him, killing confessed to the “they” had told him that had body put boards, taken the to the cellar and it behind some guy” eyebrows put the “white had shaved the make-up (so body ap- to make the victim look homosexual that it peared him), else Perry someone had killed and that had stran- gled Finally, the victim with his hands. the State introduced evidence, pieces physical including drug parapherna- various lia, clothing basement, and and blankets from the the extension cord. uncertainty
The defense case centered around the date alleged Perry’s of death and the State’s failure to corroborate sought confession. The defense had died establish Redd 2nd, days Perry’s on March not three earlier as confession Hence, proved indicated. the State had not its case that defen- present any dant participated way the death *14 theory To discredit the State’s the defense called James Redd. report Doyle Medical Examiner’s office. Based on his from the incident, Doyle rigor he had of the testified that observed arms, victim, jaw, legs and livor mortis mortis the back, body, the it cold. the and that when he had felt missing- Long of the Camden Police testified that no Lieutenant persons report had filed on Jerome Redd between Febru- been counsel also ary 25 and March 1986. Defense re-called Milbury that several items referred to to the stand to establish statement, including Kangol large card- Perry’s hat and box, confirmed to have at 762 board had never been been Division Street. charged knowing jury
On count one the trial court the on murder, aggravated manslaughter, manslaughter. and reckless charged jury felony (during The court next the on murder the Redd), robbery first-degree robbery, hindering-appre- of and the half, deliberating hension counts. After for an hour and a the sought first-degree jury felony re-instruction on murder and Perry robbery, after which it resumed deliberations and found murder, murder, of guilty knowing felony of and three counts (counts one, two, four, six). hindering apprehension five and (count three) However, robbery acquitted it defendant of (count seven). State, hindering apprehension of one count defense, inconsistency in and the court all noted the the convic- felony acquittal underlying the tion for murder and the of felony robbery. highly procedure, In a unusual the trial court, objection, questioned jury over defendant’s the foreman directly concerning robbery There- the basis of the verdict. guilty to “not after the trial court decided to mold verdict felony jury acquitted had defendant of murder” because however, court, robbery, underlying felony. The trial never change informed the of that in its verdict. Penalty
2. The Phase aggravating originally The State had served notice of two However, factors, 2C:11-3c(4)(c) acquittal (g). N.J.S.A. felony murder resulted in the c(4)(g)aggra- dismissal vating Therefore, c(4)(c), exclusively factor. the State relied torture/aggravated assault/depravity factor.
The State offered no penalty phase, new evidence at the limiting presentation opening closing its an statement prosecutor. statements, prosecutor In those adopted “strangled what came to be known as the twice” theory. In an *15 “aggravated effort establish assault” and to show that the quick death, crime prosecutor was not one self-defense or the the Perry described murder as one in which had choked Redd to point unconsciousness, and then himlet revive. Accord- ing prosecutor, revived, to the after Redd had defendant then reapplied the choke-hold theory and killed him. That was based more the medical hypothetical ques- examiner’s answer to a any Perry’s tion than it was on statements about the encoun- ter.
Despite the guilt-phase argument fact that the main State’s during was that the murder had occurred the course aof robbery, prosecutor, attempt “depravi- an to establish the ty c(4)(c), alleged of mind” element inconsistently that the purposeless. just killing murder was “The defendant felt like because, you know, as Jerome was unconscious for victim] [the a while after strangulation. the first no There’s need for him to die.” alleged mitigating
Defendant five factors: N.J.S.A. 2C:11- 3c(5)(a) (extreme disturbance), c(5)(b) (the or mental emotional “solicited, in, participated victim or consented to the conduct death”), c(5)(d) disease, resulting (impairment due to mental intoxication), c(5)(e)(“unusual duress”), defect or or substantial (the c(5)(h) factor). only “catch-all” The defense called one witness, Redd, mother, Delihah the victim’s spoke who out against capital punishment. closing, defense counsel linked mitigating all of an argument during those factors into dispute Perry, Perry’s between Redd and withdrawal from drugs during him to had caused over-react the confrontation. jury, explaining general charged then
The trial court mitigating aggravating factors between differences according to the each the two burden factors. It differentiated jury and to how the particular to show a factor party carried its existence non-existence. should determine c(4)(c) aggravating factor unanimously The found jury The defendant to mitigating factors. court sentenced found no death. Proceedings
3. Post-Trial verdict, or, in penalty-phase moved to Defendant set aside alternative, The for a trial. motion had been foreshad- new request forego penalty owed counsel’s eleventh-hour charged request jury after the had been phase. That had come phase actually had penalty before deliberations but post-trial hearing begun. then and at the The trial court both argument find rejected Perry’s rationally that a could e(4)(c) factor to exist. non-capital court defendant on his convic- trial sentenced merging hindering-apprehen- the three
tions follows: after as *16 term, charges, five-year any to a consecutive other sion sentence, five-year possession for of heroin to a consecutive and term.
II Phase Guilt guilt challenges phase. to the principal makes four Defendant First, he denied effective assistance he asserts that sixth federal in violation of the amendment counsel 1, of the state paragraph and article 10 Constitu- Constitution Second, appeal on he for the first time tion. asserts voir dire denied improper right him his to a incomplete jury and and impartial jury in violation of both federal fair trial an Third, he asserts the court erred state constitutions. sponte passion/provocation sua failing charge on
147
manslaughter
self-defense, thereby
and
depriving him of due
process
Finally,
argues
pursuant
Gerald,
law.
he
to State v.
40,
(1988),
113 N.J.
A. Assistance Counsel Ineffective First, Perry claims denial right of his constitutional to coun- sel under the sixth Specifically, amendment. he contends with respect guilt-phase to the that his counsel were ineffective (1) they because suppress failed to move evidence based violations, fourth- (2) and fifth-amendment they failed to investigate present alternative defenses. We find his con- tentions meritless. Supreme United States Court set the test for identifying counsel,
ineffective assistance of
see
Washing
Strickland v.
ton,
668,
2052,
(1984),
466 U.S.
104 S.Ct.
1. Legal Defendant’s Arrest Was Defendant Milbury asserts that law-enforcement officers and Beverly illegally 4, entered 1189 Landsdowne Avenue on March
148 that, illegal, argues entry the so because was 1986. Defendant possession. As the his warrantless arrest narcotics was arrest, drugs illegal paraphernalia and should of fruits that confession, the suppressed, taped so should have have been intervening purged no circumstances there were because legal arrest was because taint. The State contends the the materials, drugs plain in paraphernalia, illicit the were the view. plain seize found “in view” police may
The evidence 169, Hill, 173, despite the lack of a warrant. State v. 115 N.J. (1989). applicability plain-view doctrine A.2d 322 The 557 to right position officer have depends on the to be States, seize that evidence. Harris v. United that view and to 1067, 234, 236, 390 U.S. S.Ct. L.Ed.2d (1968). Beverly Inspector Milbury had that Detective right. right position plain to a to be have view officers’ purpose out of their entrance into house.
arose
“Legitimate
police procedures not
precaution justifies routine
Esteves,
designed
pretexts
discover
as
to
evidence.” State
(1983)(citing Cady
149
York,
573,
Defendant’s
Payton
claim that
v. New
445 U.S.
1371,
(1980),
63
compels
S.Ct.
L.Ed.2d 639
a different
here,
conclusion lacks merit.
Unlike
officers
those
Payton entered “in order
576,
to make an arrest.” Id. at
1375,
S.Ct. at
The initial police conversations between defendant and were police-initiated. neither custodial nor On both March 2nd and 3rd, Perry spoke police but was free to leave at any time. day He did fact leave completing planned each before He repeatedly interviews. was also he cooperate, told need not yet freely do returned to so. One could not conclude that he deprived of “his any significant way,” freedom action in *20 Arizona, 436, 444, 1602, 1612, Miranda v. 384 86 U.S. S. Ct. 16 694, (1966), subject L.Ed.2d 706 or that he was to formal arrest or the restraint of normally freedom movement associated Beheler, 1121, with formal arrest. v. 463 103 U.S. California 3517, (1983). 77 timing, S.Ct. L.Ed.2d 1275 Neither the atmo- conduct, sphere, police or response defendant’s to that conduct at that time Supreme resembled the conduct criticized in the application Court’s latest of the rule. Edwards v. Minnick — -, 486, Mississippi, 111 U.S. 112 489 S.Ct. L.Ed.2d (1990) (where subject interrogation a defendant to custodial repeatedly unequivocal made requests proceed only through to counsel and was told that he could not refuse to talk to federal interrogators, suppressed state his statements should be rights of his protected by violation fifth-amendment as Edwards). questioning police-initiated.
Nor his on March 4th Despite Perry’s the fact that 4th March statements were doubt (due less in a drug made custodial context to his arrest on “ charges), they willing- are still admissible. He ‘evince[d] 152 the investi generalized discussion about a desire for
ness and ” 82, (1990) Fuller, 75, 429 118 570 A .2d v. N.J. gation.’ 1039, 103 2830, Bradshaw, 77 462 Ct. Oregon v. U.S. S. (quoting (1983)). expressed his desire to repeatedly He both 405 L.Ed.2d investigation understanding that and his with the murder assist that he wished cooperate. He never stated he did not have to fact, counsel; explicitly he stated only through to deal counsel. See Michi proceed without March 3rd that he would 7, 321, 7, 325 n. 101 n. Mosley, 423 U.S. S.Ct. gan v. (1975) suspect’s to (stating that decision 320 n. 7 L.Ed.2d counsel, request for does not raise unlike a questioning, cut off proceed to without suspect is unable presumption that advice). police on the returned to lawyer’s Defendant to polygraph to take the days expressing his desire successive doing rights murder and waived his before clear himself of the including 4th. As he initiated day March so on each himself, rule. he does not fit within Edwards conversation right waiver of his the record show that defendant’s Nor does unintelligent. prosecution involuntary or to counsel was right counsel and to Perry’s has shown that waiver knowingly, intelligent “voluntarily, was made remain silent (1988) 123, 134, 548 A .2d ly.” Bey, See State eagerness take the II). expressed his repeatedly He (Bey repeated He his desire prove himself innocent. test met its under attorney. The State burden proceed an without (1984), Bey 477 A .2d1265 Wright, 97 N.J. by showing that his II, A.2d supra, drug day, by any use that was not tainted March 4th confession abuse, by any confusion questioning or by any prolonged right to remain silent. over *21 springing the rules Likewise, any did not violate of the State Perry requested or cannot be said that from Edwards. It fact, through he admits proceed only counsel. chose to voluntarily spoke police. very treated and he was well Minnick, both mistreat- radically who claimed This differs from “that the facts assure persistent pressure. These ment and
153
pressures
custody
coercive
inducing
of
were not the
cause”
—
Minnick, supra,
at-,
his confession.
111
U.S.
S.Ct.
492,
Under the Strickland/Fritz defendant’s right to by counsel was not attorney’s violated failure to to suppress move evidence under the fourth and fifth amend ments. litigate Where defense counsel’s failure Fourth Amendment [or Fifth] allegation claim is the competently the defendant principal ineffectiveness,
must also that his Fourth Amendment claim is prove Fifth] meritorious [or there is a reasonable that the verdict would have been different probability prejudice. absent the excludable order evidence in to demonstrate actual [Kim melman v. Morrison, U.S. S.Ct. 365, 375, L.Ed.2d (1986)]. Perry Since cannot establish that his fourth fifth amendment meritorious, claim is he has not cleared the in first hurdle establishing that he received ineffective assistance counsel. Strategy
3. Guilt-Phase Defendant claims that counsels’ reliance on “insubstan tial defenses” lieu of stronger other theories and their failure investigate present exculpatory other relevant evidence also constituted guilt ineffective assistance of counsel phase. disagree. second-guess We We not rea will counsel’s adoption ways sonable one provide of the “countless given effective in any assistance case.” v. Strickland Wash 689,104 ington, supra, 466 atU.S. S.Ct. at 80 L.Ed.2d at one, 695. In a case like this which case rests the State’s nearly defendant, exclusively given by on a confession (reasonable doubt) pursue counsel’s a line decision to of defense that undercuts that confession’s scientific circumstantial reliability Hightower, an unreasonable one. (1990). only A.2d 99 Counsel believed attacking Eschewing prevail. confession could defendant self-defense, equally-problematic pas- alternatives such as *22 defense, or im- manslaughter, an intoxication sion/provocation represen- constitutionally-deficient is not plicating Miller Clark tation. reasonably not that counsel could contention
Defendant’s adequately did not he rejected such alternatives because have Al potential persuasiveness. lacks investigate each limited, investigation here nowhere near the fell though supra, 120 deficiency Savage, v. found depths 618-622, A .2d 455. at thorough investigation of law and facts relevant [Strategic made after choices strategic unchallengeable, choices made are virtually options plausible investigation to the extent are reasonable precisely less than complete after investigation. judgments the limitations on support that reasonable professional investigation or to make a to make reasonable other counsel has words, duty investigations In any decision that makes particular unnecessary. a reasonable investigate must be decision not case, directly ineffectiveness particular applying a measure in all the circumstances, heavy for reasonableness assessed Washington, judgments. counsel’s v. supra, of deference to [Strickland at at L.Ed.2d 695.] S.Ct. 690-91, U.S. fallen has not shown counsel have below
Defendant Therefore, satisfy failed to adequate he has mark of acumen. test. prong the Strickland objective-unreasonableness Likewise, the cumulative reject defendant’s claim that we depriva failures constituted constitutional effect of counsels’ guilt phase even if assistance of counsel tion of effective Regardless of the choices that single itself does. no instance counsel, involved by trial those choices have made could been case, defense counsel in “a strategy trial difficult which] [in in the there were attempted highlight what few weaknesses 412, 577 supra, 120 N.J. at Hightower, State’s case.” State ineffec a decision that counsel was A.2d 99. We will base subjective such standards. tive on Jury B. Dire Voir Voir Dire
1. General appeal that inade- alleges time on for the first Defendant right fair trial an him his to a quate voir denied dire impartial jury in violation of the federal and state constitutions. *23 Specifically, defendant claims that the trial court’s voir dire failed to elicit sufficient concerning jurors’ information the attitudes toward the death penalty and prejudice toward racial intelligently to enable counsel effectively to exercise his right challenge. independent Our review the entire voir process dire leads us to conclude that the questioning voir dire adequate. was attempts dire impartial jury,
Voir
assure an
indispensable
and
component
See,
critical
fair
trial.
e.g.,
Williams,
393, 409,
(1988)
State v.
113 N.J.
court to select
showed “a balanced dis
differing
jurors might
cussion about the
views that
have about
only
penalty,
qualification being
they
the death
could
439,
follow
Long,
the court’s instructions.”
N.J.
480,
(1990);
Biegenwald,
575 A .2d435
see
also State v.
(1987) (“an independent
Defendant, supra, 113 relying on Williams trial, argues decided after this court’s A.2d jurors disqual be introductory explaining remarks would personally-held prevented them from follow only ified if beliefs II, expressed ing the were error. Williams Court law it reservations” about such an instruction because “serious *24 qualification during answers the death juror “tells what responses avoid process lead to automatic excusal and what 412, argues at A.2d Defendant excusal.” Id. 550 1172. death-scrupled Seavey and jurors, the two excluded Thomas themselves, Mauro, purposely disqualified noting that Kevin period inability to for the extended the indicated an sit both the would take. court estimated case this obviously not aware of Court’s trial court was instruction, apparent that it disapproval the but it is did in trial court’s operate negatively in defendant’s case. The differing the structions contained “a balanced discussion about only might penalty, have the death jurors views that about being they court’s instruc qualification could follow the 480, at A supra, 119 N.J. .2d Long, tions.” Moreover, claim). many jurors who were (rejecting similar in a qualified expressed participation with similar difficulties long voir importantly, Most a review dire trial. each jurors Seavey plainly shows that tried Mauro Nothing inquiries honestly. indicates answer the trial court’s duty. is no indication get jury an intent excused from There harmful. preliminary that the instruction was Although inquiry further particular into views of a juror might have further assisted counsel in the evaluation of that juror, complied the trial court our State v. with instruction Hunt, supra, 1259, II, at 558 A.2d and Williams supra, 113 N.J. at by A.2d assuring juror’s each compliance legal the governing by using standards and open-ended questions requiring juror to articulate his or her views in his or her own words. There nothing perfunctory was rather, the process; about open-end- the trial court’s mixture of initial questioning more-particularized ed follow-up ques- tioning nicely probe meshed duty sufficiently with allow- ing juror to use or Nothing her own words. in that process prejudice resulted in to the impaneling defendant of a perform that could not duty its in accordance with its II, Bey supra, instruction or oath. See 151-52, 112 N.J. 887; Ramseur, 2d supra, A. 106 N.J. 524 2dA. 188. Racial-Prejudice
2. Inquiry Perry claims that voir dire impermissibly abbreviated inquiry potential the absence of into prejudice. Although racial questionnaire question specifically did not contain a directed impact at the defendant, of the race of the witness or it did question contain a investigating potential presence “any passion, prejudice, sympathy or least juror bias.” At one found question an inquiry juror’s potential include into a racial prejudice. *25 McDougald, State v.
Recently, 523, in 120 550-54, (1990), 2d we addressed the issue of voir dire 577 A. sponte inquiry on racial prejudice. Sua into the racial views of potential jurors required is not under either the or federal state minority-defendant capital constitution in carry cases no special racial overtones. Turner v. involving circumstances Murray, 28, 476 U.S. 1683, 106 S.Ct. 90 L.Ed.2d (1986); McDougald, supra, 120 N.J. 553-54, A. 2d 419. Absent a
request
question
presence
for such a
and in the
from counsel
bias,
general prejudice
question
about
the trial court’s
non-required question
failure to ask such a
cannot be con
sidered error. Both State v. Ramseur and
II call for
Williams
expansive voir dire to combat subtle and difficult-to-dis
more
prejudice
cern racial
in cases in which the defendant is black.
Ramseur,
See,
supra,
e.g.,
v.
The circumstances
this
do not indicate the
raising explicit
of circumstances
racial concerns. As
McDougald both the victim and defendant were black. There
fore,
recognizing
way
while still
the subtle
which racial
prejudice
impact
any proceeding involving
can
on
a black defen
dant,
Ramseur,
supra,
Perry contends that error occurred because of incom- plete jury prior guilt-phase instructions to the deliberations. charged jury On the murder count the trial court on murder, knowing aggravated manslaughter, and reckless man- slaughter. argues appeal Defendant for the first time on charge sponte passion/provoca- the trial court’s failure to sua manslaughter right tion and self-defense to due violated process. disagree. We evidence, principally Perry,
From the the statement of Arthur say plain we cannot error occurred when the court failed to charge passion/provocation manslaughter and self- “ ‘clearly defense. The facts of this case did indicate’ the
159
appropriateness
Choice,
of
charge[s].” State v.
98 N.J.
th[ose]
295, 298,
(1985) (quoting
Powell,
1. Passion/Provocation manslaughter
Murder is reduced to
if
“committed
the
passion resulting
heat of
provocation.”
from reasonable
2C:11-4b(2).
N.J.S.A.
aggravated
Unlike
assault or reckless
manslaughter, which involve mental states different
from
murder,
knowing
passion/provocation
mitigation
involves
of
intentional murder because of the existence of objectively-rea
Grunow,
provocation.
sonable
102
506
A. 2d
(1986).
manslaughter
has four elements:
the
Passion/provocation
must be
provocation
the defendant must not
had time
adequate;
have
to cool off between the
slaying;
and the
must have
provocation
provocation
actually impassioned
defendant;
defendant must not have
before
cooled off
actually
slaying. LaFave &
Criminal
Scott,
Law
at 255.
[Substantive
7.10
The
] §
objective,
subjective.
slaying
first
two criteria are
two
other
If a
does not
manslaughter
include all of
of
those
the offense
elements,
passion/provocation
Mauricio,
v.
A. 2d 879
cannot be demonstrated.
[State
(1990)].
Perry’s
support
finding
statement could not
that each
passion/provocation
four
manslaughter
elements
existed.
Although
acknowledge
away
we
and embrace the “trend
practice
provoca-
from
placing
types
the usual
various
tory
pigeon-holes,”
Mauricio, supra,
into
conduct
Scott,
(citing
N.J. at
However Redd’s circumstances, drug use under those it could not reason- provoked passion. ably have statement,
Perry’s
which details what occurred in his encoun-
Redd, provided no basis
passion/provocation
ter with
for a
statement,
manslaughter charge.
In that
recognizes
he
rele-
emotions,
“pump enough
e.g.,
vant
fear into
to make him
[Redd]
wait,”
up
rage,”
self-description
shut
and
Redd’s “little
and his
“panicked”
Yet,
as “scared”
after Redd’s death.
nowhere
any rage
does he describe
of his own nor would his careful
application of a take-down and throttle lead to a conclusion that
he lost control of his emotions and reason.
Crisantos
265, 278-80,
(Arriagas),
(1986) (absence
102 N.J.
The use of force another self-defense is justifiable reasonably “when the actor believes that such force immediately necessary purpose for the protecting himself against by person the use of unlawful force such other on the present requires occasion.” 2C:3-4a. N.J.S.A. Self-defense an “actual, honest, reasonable belief” defendant the neces sity using force. Kelly, See State v. 97 N.J. (1984).
A .2d 364 Bowens, (1987), In State v. A .2d 215 Court said: “in order for a killer to have a self-defense to he or Generally, homicide, perfect (1) bringing
she must: be free from fault on the conflict with his or her (2) though (a) believe adversary; reasonably, necessarily correctly, unless inflict him adversary will, forcibly prevented, immediately upon *28 (b) injury, her a fatal or serious and that force must be used bodily deadly inflicting injury.” him or her from such an [Id. upon adversary prevent (quoting A. 215 at 532 2d W. LaFave and A. Scott, Handbook on Criminal (1972)).] Law statement, Perry’s principal Whether evidence on self-de ” fense, “clearly any indicates that the victim exhibited unlaw ful force toward defendant so as to cause defendant to have any danger reason to presents believe that his life was in question. difficult See N.J.S.A. 2C:3-4a. After defendant and words, exchanged the victim had some heated the victim finger pointed “walked toward” defendant with his at him. weapon Defendant found body, although no on the victim’s thought might defendant gun, that the victim have a at no time saw, say thought saw, did defendant ever that he or even he pull weapon. the victim out a Defendant never stated that the prior victim struck him or tried to him during strike to or Defendant, victim, struggle. fight. not the started the Defen narrow, dant stated that because the room he let the victim get me,” enough” pointed “close so that “when he he was him; grab able to he threw the victim “back over” himself in a Corps. method he had learned in the Marine It was at that point they “scuffle,” appears, that “scuffled for a few.” The it trying was the result of the victim loose break from defen stranglehold. minutes, got limp dant’s “He for a few then he rage trying get broke out into a if really as he was loose. I guess losing that’s when he was his life. And I him for held just collapsed; minute or so and he another he died.” See 274-75, (Arriagas), supra, v. Crisantos State (to manslaughter, reduce murder to A.2d contest must have waged equal terms advantage and no unfair taken of been deceased). alleges any further may belief defendant have danger he in immediate partially
had that was when the victim testimony revived was unreasonable. The medical revealed “pretty incapacitated” would have victim been point. “disoriented” at that Defendant himself .stated that he thought passed shortly initially being the victim had out after grabbed. jury reviewing We find it difficult to conclude that a reasonably all the could find that evidence defendant had be- strangle protect lieved that he had to the victim to himself from unlawful force.
Nonetheless, there are other statements in defendant’s con
fession,
(he
applied
grip”
such as the reason he
the “death
me,”
thought
him
“it was either
came at me as if
“[h]e
something”)
might
he
support
had
a self-defense claim.
requested
objected
Had defense counsel
such an instruction or
absence,
might
to its
we
conclude that the trial court should
Rose,
charged self-defense.
have
See State v.
(1988)(noting
concerned that by
option,
manslaughter
might
conviction.
In
defendant
to choose a
have acquitted
given]
charge
defendant’s
such a
should not be
the latter case
perhaps
[where
might
the introduction
the possibility
acquittal,
concern is not that
preempt
engender
the evidence it will
conviction
it will —because of
but
—assure
301,
murder.
at
Because
conclude
may
subject
we
that defendant
be
penalty
death
because there was insufficient evidence to
aggravating
e(4)(c)
submit
factor
jury,
we need not
decide whether it was
error
harmless
for the
court to
trial
have
jury
failed to instruct
it must find that defendant
knowingly
purposely
caused death and not
he
intended
to cause
bodily
resulting
serious
harm
in death. See State v.
Hunt, supra,
(citing
N.J. at
2dA.
Gerald,
40, 69,
(1987)).
113 N.J.
Defendant’s claims of error merit little discussion. Sequential
1. Deliberation on Homicide Offenses objects appeal
Defendant
first
time on
to the
instructing
trial
jury
court
charges
to consider the various
sequential
court,
in a
manner.
charged
The trial
when it
knowing murder,
aggravated manslaughter, and reck
manslaughter,
less
begin by deliberating
instructed it to
on the
charge, knowing murder,
first
subsequent
and to move on to
charges only
jury acquitted
if the
defendant of murder. We
reject
nothing
defendant’s contention because “there is
inher
ently wrong
sequential charge.”
Coyle,
v.
State
(1990);
Zola,
165 rejected In Coyle, we the use of a strictly sequential charge passion/provocation manslaughter where provided a viable al jury. case, ternative for the sequential such a charge potential has “the to foreclose whether passion/provocation should reduce an purposeful killing otherwise from murder to manslaughter.” Coyle, supra, State v. at However, here, A.2d 951. where no supporting pas evidence exists, sion/provocation passion/provocation and where was not argued, the present Coyle disappear. concerns position
We reaffirm the charges evidence of [a]bsent passion/provocation, sequential usually provide framework for 112 N.J. deliberations. Zola, orderly supra, 405, 548 119 N.J. A.2d 1022. [State v. supra, A.2d Coyle, 951]. Accordingly, we find that plain the trial court did not commit by error instructing jury charges consider the in a sequential order.
2. Robbery Motion to Dismiss Felony Murder
Perry acquitted robbery, yet felony convicted of murder. Noting inconsistency verdicts, of those the trial court molded the verdict on each count guilty.” to “not There fore, apparent it is that no direct harm to defendant occurred as a result of the trial court’s failure to robbery dismiss the felony charges. murder
However, question there remains of whether indirect harm occurred as a result of the failure to dismiss those charges. That indirect harm revolves around the elusive idea (as of “taint” jurors’ and whether the obvious confusion conviction) they support felony what must find to murder spilled charge knowing over into their consideration of the murder. jury’s We conclude that neither the nor deliberations knowing the verdict of murder was tainted the misunder- standing charges. of the trial court’s instructions on those two knowing
The conceded correctness of the court’s definition of issue) (apart murder already-disposed-of from the cou- Gerald pled sequentially sug- with the court’s instruction deliberate
gests jury that the reached its conclusion regarding knowing any possible murder before taint. That conclusion rests on bi-polar support. The first strut is our necessary presumption juries follow the they instructions that given. are Manley, 54 (1969). N.J .2dA juror’s of death process qualification, and the oath, trial court’s designed instructions are all to assure that will make a conscientious system capital reaching Tke entire to follow the law its verdict. attempt punishment depends jury exercising on the that the the conscience belief community responsibly guided deciding will exercise its discretion in *32 Ramseur, who supra, shall live and who shall die. v. [State at N.J. 106 310, 524 A. 2d 188 (emphasis added).] The second is the belief that appropriate, where sequential charges jury “assure that just renders ‘a verdict applying ” the facts to the law as it charged.’ Coyle, State v. supra, 223, 119 (quoting N.J. 574 A .2d951 People Boettcher, 69 174, 183, 83, 87, N.Y.2d 594, 513 N.Y.S.2d 505 N.E.2d 597 (1987)). Together, they support the conclusion that no taint stained jury’s decision knowing murder, on because the knowing verdict on preceded murder would any have decision based on a misunderstanding of the felony instructions on robbery. murder or Even if decided robbery issue first, guilty” its “not on that count prejudiced would not have its consideration charges against of the other defendant.
3. Prosecutorial Misconduct
Finally, defendant raises regard numerous issues with prosecutorial to the practices procedures indict, and try, used to convict, and sentence him. All of those claims fit under the general prosecutorial rubric of misconduct. As he earlier as serted regard performance, his counsel’s defendant alleges prosecutor’s that the behavior constitutionally was un acceptable specific in the entirety. instances and in the We do agree.
Perry prosecutorial claims five instances misconduct, all of essentially which can be prosecu- classified as a claim that the
167 tor abused his in determining discretion prosecute whom to prosecute. elaborate, whom not to To he claims that (1) failing investigate State abused its discretion in Miller’s properly prosecuting him; complicity (2) defendant was selectively prosecuted; (3) failing the State misled the Grand purposely to disclose the Jury by extent of Miller’s involvement and otherwise their compromised function; (4) A violation occurred because the State failed Brady to turn over to the polygraph defense the crucial portion Miller’s report wherein he makes admissions; inculpatory (5) grounded the State’s entire case was on the “fundamental misrepresenta- tion” that defendant alone committed these crimes. All of those claims are essentially a Perry contention that prosecuted not, and Miller was and that no reason exists for that distinction. very
Prosecutors have
broad
in determining
discretion
whom
prosecute
prosecute,
whom not to
but also have an
obligation to exercise
good
that discretion in
faith. State v.
McCrary,
132, 142,
97
(1984);
N.J.
Recently,
DiFrisco,
253,
in State v.
118 N.J.
168 The that in discriminatory the crime. Court noted enforcement cases, general rule is: the
prosecute,
relationship
[State
[Wayte
susceptible
663,
review.
entirely
deterrence
committed an
"[S]o
recognition
668]
long
v. Di
v. United
in his discretion.” Bordenkircher v.
Such
(1986).]
54 L.Ed.
and
as
value,
to the Government’s
Frisco,
the
what
factors as the
offense
2d
States,
prosecutor
kind of
the decision to
charge
supra,
604,
Government’s
defined
470
[611]
to file
analysis
118 has
strength
U.S.
(1978).
probable
prosecute
overall
598,
statute,
bring
the courts are
enforcement
This broad discretion rests
607,
265-66,
before a
enforcement
cause to believe that
105
the
is
Haye,
case,
particularly
S.Ct.
decision
434 U.S.
grand
priorities,
competent
A.2d 914],
prosecution’s
plan
jury,
whether or
ill-suited to
357,
are
and the case’s
generally
to undertake.
364
the accused
84
largely
[98
L.Ed.2d
general
judicial
readily
not
S.Ct.
rests
on
explained
The
Court
that a defendant’s burden
discriminato
ry
prosecution
“plead
prove
or selective
cases
inten
selectivity
unjustifiable
tional
as well as an
basis
the dis
require petitioner
crimination.
standards
to show both
‘[The]
* * *
system
that the
discriminatory
enforcement
had a
effect
”
by discriminatory purpose.’
that it was motivated
Id. at
914 (quoting Wayte, supra,
571 A .2d
169
8, 18-19,
(1984).
A. 2d
ground
N.J.
472
1050
Such
be an
would
prosecutor’s
that
indication
the
conduct affected the fairness of
Ramseur, supra,
defendant’s
v.
320,
trial. State
106
188;
Zola, supra,
524 A.2d
v.
Finally, there no basis factual for defendant’s claims of a violation, Brady Brady Maryland, see U.S. S.Ct. (1963) (prosecution ongoing duty L.Ed.2d has to potentially defense), all exculpatory reveal evidence the or a misrepresentation” by “fundamental prosecution. the There is no evidence did one-page that trial counsel not receive a section report test, despite on Miller’s polygraph his certification receiving that he did not it. six-page recall The sheets of the report consecutively, page were numbered contained five report the “results” without which the would have made little prosecutor report sense. The the sent trial counsel well you questions before trial with a letter “If saying any have please prosecutors do Although may not hesitate to call.” Brady compliance by beseeching transfer burden de attorneys inquisitive, DiFrisco, supra, fense be non-delegable A.2d 914 “a (Brady creates responsibility”), any letter response that lack of lead us page five, to conclude that defense counsel received if he even having Similarly, cannot recall done so. the record contradicts prosecutor attempted jury assertion that deceive believing into defendant was the actor in the sole involved ignores Inspector Milbury Such testimony crime. a claim surrounding investigation testimony the crime. Perry reported body he told the Miller had Perry. and that he had interviewed both Miller and More importantly, taped played defendant’s entire confession was *35 by implicating prosecu begins he Miller. The jury,
the wherein nothing exploring the defense from alterna tion did to inhibit defenses, including implication the of Miller. tive Gaps Transcript in Trial 4. alleges “gaps” three in the trial
Defendant recording transcript plus peremptory-chal the closed of the incomplete, lenge process resulted in an defective record of the appellate dis prejudiced his chance for review. We trial agree. “gaps,” read in the context of the entire
The three when immediately preceding each transcript and of those discussions inconsequential matters gap, all involved administrative or were jury simply waiting related for the to re-enter the courtroom jury Concerning transcription the of and settle into the box. the peremptory challenges, jury-selection list on file with any court clerk renders error harmless.
Ill Penalty Phase Although regard claims error defendant raises numerous ing penalty phase, principal important and most conten there tion is that his death sentence should be vacated because ag was insufficient evidence warrant consideration 2C:11-3c(4)(c). gravating factor N.J.S.A. c(4)(c)
A. Aggravating factor 2C:ll-3c(4)(c) penalty may provides that the death N.J.S.A. out imposed be in those cases which “the murder was vile, wantonly it rageously or horrible or inhuman torture, depravity aggravated an assault to involved of mind or 198-211, Ramseur, supra, In victim.” vaguenéss” of recognized 524 A.2d we the “obvious c(4)(c), provision. constitutionality To we narrowed save its construction. Ramseur, components we identified the two of factor
c(4)(c) as follows: aggravated
Torture or
to the victim shall be
if
battery
found
the defendant
psychological
intended
and did
fact
cause,
cause, severe
or
or
physical
pain
suffering
victim
to the victim’s death,
either
prior
measured
“severity”
or
the duration of the
intensity
pain,
or
combination of
pain,
greed,
revenge
both. Where
murder was not
product
envy,
*36
of
another
those emotions
ordinarily associated
and served no
murder,
killing,
for the defendant
beyond
pleasure of
the court shall instruct
purpose
jury
meaning of
the
on the
this
context. For the
depravity
specific
defendant
enjoyment
just
the
who killed for
of it, because the victim
to
in the
happened
be
just
area,
all,
or for no reason at
kill,
must be able
its most
reserve
society
524 A. 2d
extreme sanction.
at
[Id.
211,
188],
Moreover, we have held
depravity
that
mind can
found
be
from evidence mutilation after death.
McDoug
See State v.
ald,
supra, 120
at
The general allegation c(4)(e) State noticed a of factor at pre-trial. The penalty phase State asserts that at the there was “aggravated sufficient evidence of (physical pain assault” and twice) the strangled that victim was “depravity of mind” (purposeless killing) c(4)(c). jury appeal, the On find argues make-up State for the first time that the and shaved eyebrows depravity indicate via corpse trial mutilation. The court, however, charged depravity only way on killing. senseless Aggravated
1.
Assault
Ramseur, supra,
we
explained
regard
aggravated-assault/torture
c(4)(c)
component
to the
legislative
is
“essence
concern
the defendant’s state
concern,
“Society’s
of mind.” 106
extreme
or mental
death.
state of mind
physical
—in
to our Code’s
definition.
that we
require corresponds
“purposeful”
Thus,
suffering
what defendant wanted
extreme
or mental
must be
physical
precisely
(footnotes omitted).]
[Id.
at 208-09,
to occur in addition to death.
expressed concern
where the submission
was based
solely
employed
on the means
to kill:
c(4)(c)
Our concern is that if the
factor could be sustained on this evidence alone
killing]
distinguish
there
be
would
no
[method
to
this
principled way
case, which
death
imposed from
cases in
it
penalty
which was not.
many
c(4)(c)
mind,
Because factor
focuses on the criminal’s
state
supported solely
it cannot be
reference
the means em-
ployed to commit the
Matulewicz,
murder. State v.
115 N.J.
191, 200,
(1989).
Exactly
much
necessary
strangle
how
force is
shake
someone
death is
imposed
unclear and “death should not be
as a result
may
extremely
of what
be an
close determination of
”
pain
‘necessary.’
how much
Ramseur,
considered
188;
supra 106
atN.J.
524 A.2d
see
also
v. Matulew
icz, supra,
199-200,
(“the
115 N.J. at
pathologi
2. of Mind *38 support
The record also
shows dearth of
on which to
“depravity
establish that
this murder evinces
of mind.” In
“depravity
as
Ramseur we defined
of mind”
follows:
those who murder
severely
concern
punish
These words mark society’s
distinguished
meaning
murder
for a
from those who
as
or
without purpose
purpose).
(albeit
unjustified
isolates conduct
This term
a completely
purpose
greatest
ordered society,
and terror within an
abhorrence
that causes
from
themselves
either in fact or
protect
citizens cannot
perception
because
it,
it
he likes
The killer who does
because
acts of violence.
these random
who kills
without
better,
it makes him feel
bystanders
even because
perhaps
indicate that
whose
would
kills children and others
helplessness
who
reason,
mind.
define as
evinces what we
murder,
depravity
no reason to
there was
(footnotes omitted).]
at
524 A.2d
209,
[106
by saying
of that definition
portion
the last
clarified
Court
permit
enough to
of the
was not
helplessness
victim”
that “the
“usually
fact
depravity,
rather
finding of
but
n.
killing.”
at 209
Id.
the senselessness
demonstrates
depravity of
Ramseur,
concluded that
we also
A. 2d 188.
*
*‡ because
who killed
apply to “the defendant
mind should
area,
no reason at
in the
or for
just happened to be
the victim
“purposeless
188. The so-called
at
524 A .2d
all.” Id.
murder,” then,
killing that involves none of
emotions
is the
murder,
Matulew
normally
associated
or motives
(“crime
bereft
icz,
175
rationally support
The evidence
not
finding
does
a
that this
Although
of depravity.
prosecutor
murder was one
argued
phase
penalty
at the
that Jerome Redd had died for “no other
Perry
die,”
reason” than that “Arthur
decided he should
there
believing
is no basis for
that this
purpose
death
no
for
“served
beyond
pleasure
defendant
killing.”
of
State Rams
eur,
211,
above,
106
at
524
As
A.2d 188.
noted
where
“greed, anger,
revenge
other similar
present,
motive is
depravity aspect
c(4)(c)
of section
should not be
submitted
Gerald,
jury.”
supra,
65-66,
113
atN.J.
549 A.2d
792;
Ramseur,
see also State v.
To *40 Perry showing that intended any of evidence the absence with necessary to stran pain in addition to that gratuitous cause c(4)(c)to inapplicability of to death demonstrate gle Redd 2C:11- aggravating factor N.J.S.A. Accordingly, case. this remaining guilt- after the factor 3c(4)(c), aggravating the sole jury. There verdict, presented to improperly phase was Because de is vacated. fore, death sentence the defendant’s do penalty, death we again subjected to the cannot be fendant concerning the claims of error other discuss defendant’s phase. penalty
IV
Non-Capital Counts
Sentencing on
mistakenly weighed
complains that the trial court
Defendant
sentencing in
non-capital
relating to
aggravating factors
hindering apprehension
for
giving Perry consecutive sentences
the court
points out that
drugs.
of
He also
possession
and
sentences,
imposing consecutive
its reasons for
failed to state
627,
Courts
consecutive sentences because “the crimes
objectives
predominantly
their
were
independent of each
other.”
Yarbough, supra,
V deliberately Perry Arthur killed on February Jerome Redd murder, correctly 1986. For that he was convicted of and nothing opinion in this is meant to condone his unlawful acts. However, recognized this its State has that ultimate is sanction for reserved a certain class of Perry offenders. Arthur in that class.
We imposition reverse the of penalty, the death affirm defen- murder, possession drugs, dant’s convictions for knowing of hindering and apprehension, affirm the on sentences the latter offenses, two and remand the matter the to Law Division for imposition the of sentence on the murder conviction. Justice, dissenting part. in
STEIN, concurring part and proofs prosecution was based capital-murder This addict, strangled manually defendant, acknowledged drug an argument of an drug dealer in the course fourteen-year-old unwillingness victim and defendant’s money owed to the about Primarily on his cohorts. drugs the victim and distribute eight- confession, defendant was named in an the basis of offenses, him, among charging other count indictment murder, 2C:11-3a(2), felony 2C:11- murder, N.J.S.A. N.J.S.A. robbery 3a(3), robbery, The count N.J.S.A. 2C:15-1. he the victim’s coat admission that took on defendant’s based indictment, After pockets after homicide. from his the and $60 prove aggravating two gave notice of its intention the State factors, 2C:11-3c(4)(c), aggravated assault/tor N.J.S.A. c(4)(c)), (hereafter 2C:11- and N.J.S.A. ture/depravity factor felony. Defendant did not 3c(4)(g), course of a murder support sufficiency of the evidence pretrial review of the seek McCrary, ing aggravating factors. See 132, 143-47, (1984). A.2d robbery, the trial jury acquitted defendant
Because factor, aggravating felony-murder 2C:11- court dismissed solely on phase proceeded the case 3c(4)(g), penalty aggravating c(4)(c) The found factor. the basis of mitigating no factors. proved, and found factor have been to death. The court sentenced defendant conviction murder now affirms defendant's Court opinion. aspect Court’s I related offenses. concur must sentence be reversed holds that death The Court also proof warrant submission there was insufficient because *42 jury. acknowledge I that c(4)(c) aggravating factor to marginal, is factor so supporting aggravating that the evidence question the exercise marginal prompted one capital I dis- this as a case. discretion to treat prosecutorial however, that the evidence conclusion agree, with the Court’s c(4)(c) insufficient aggravating factor was supporting present jury Hence, a question. I would affirm both defen- dant’s convictions and sentence.
I. aggravating presented factor to the jury during the penalty phase of this case is set forth 2C:11-3c(4)(c): in N.J.S.A. outrageously The murder was or vile, horrible or wantonly inhuman that it aggravated
involved
or
torture,
an
depravity
mind,
assault
the victim[.]
Ramseur,
123,
In State v.
(1987),
N.J
intensity
greed,
revenge,
of
of
or another
Where the murder was not the
envy,
product
served
murder,
those
associated
no
ordinarily
emotions
purpose
killing,
jury
shall
on
of
the court
instruct the
defendant beyond
pleasure
meaning
context.
524 A.2d
[Id.
of
this
depravity
specific
(footnotes omitted).]
proofs required
prove the
Addressing the nature of the
to
mind,
requisite
the Court
state
observed:
be
because the
circumstantial,
most of these cases
will
proof
totally
get
the stand and
to his intention to cause
defendant
unlikely
testify
court will therefore be most careful to instruct
to death.
prior
pain
trial
finding
jury
distinction
a
was foreseeable and the
on the
between
pain
that defendant intended
doubt
to inflict
need to establish
a reasonable
beyond
death.
211 n.
524 A.2d
[Id.
pain prior
188.]
concerning
sufficiency
of evidence to war
Our decisions
c(4)(c) aggravating
have
juries
rant
of the
factor to
submission
recognized
significance
critical
circumstantial evidence
determining
physical
to inflict
whether the defendant
intended
Thus,
Ramseur,
psychological pain
or
before death.
times,”
after
defendant stabbed the victim “at least four
walking away
to inflict additional wounds.
Id. at
returned
victim,
your
He
“If I
kids
viewing
circum-
evidence in its
be that evidence direct or
the State’s
entirety,
giving the
favorable
as well
State the benefit
ali its
stantial,
testimony
be
therefrom,
as all of the favorable inferences which
could
drawn
reasonably
charge
guilt
doubt.
[Id.
could find
a reasonable
reasonable
beyond
*44
68,
(quoting
454,
Reyes,
459,
at 287 n.
524 A .2d188
v.
State
50 N.J.
236 A.2d
(1967)).]
385
123,
Bey,
(1988),
v.
State
112 N.J.
548 A .2d887
an autopsy
of the homicide victim
beaten,
disclosed that she had been
assaulted,
sexually
strangled.
The medical examiner also
concluded
her
that
assailant had stomped on her chest. The
ligature
cause of death
strangulation.
131-32,
Id. at
A.2d 887. The
during
guilt phase
defendant testified
of the
trial, acknowledging
he had
sexually
struck and
assaulted
denying any
the victim but
stepped
recollection that he had
on
her chest. No
prove
evidence was offered to
that the defen
dant had intended to
physical
psychological
inflict
pain
death, nor
proofs
before
did the
indicate whether the victim was
alive when
stomping
occurred. We
jury
held
charge
aggravating
on
c(4)(c),
prior
factor
delivered
our
opinion Ramseur,
constituted reversible error.
at
Id.
173-
74,
Nevertheless,
Similarly,
384,
(1988),
548 A .2d1022
N.J.
although the
by
victim’s death
strangula
was caused manual
tion,
face,
she had also been wounded in the throat and
and a
portion
substantial
body
signs
scalding.
of her
showed
Her
body
bed,
“spread-eagled”
was found
on her
with leather
thongs tied to a wrist and an ankle. The defendant’s account
suggested
of the homicide
scalding
that the
had been acciden
tal, occurring
attempt
during his
to revive the victim from a
blow the head that the
perceived
defendant had
to have been
specific
fatal. No
prove
evidence was offered to
defendant had
pain
intended to inflict
before death. Without
addressing
c(4)(c)
sufficiency
charge,
of the
we held that on
remand the
instruction should be in accordance with our
holding
in Ramseur.
Id. at
548 A
1022. The
.2d
Court also
rejected the defendant’s contention that the evidence was insuf
justify
c(4)(c)
ficient to
jury:
submission of the
to the
factor
wounding
scalding
indicate defendant’s desire
of the victim here may
The
injuries
inflicted
he killed
if these
were
her, or,
suffer before
to make the victim
a mutilation of the corpse.
[112
could constitute
died,
the victim had
they
after
548 A.2d
1022.]
(1988),
Gerald,
A.2d
is also
in the
homicide victim was beaten
analogous.
In that case the
one
robbery. A
testified that
burglary and
witness
of a
course
in the face with
had struck the victim
perpetrators
determined that
The medical examiner
set.
television
injuries
cerebral
head,
specifically,
caused
blunt-force
death was
by
[Id.
of the fists and feet.
fractured
inflicted
blows
nose,
concussions and a
.2d
549 A
792.]
sneaker-prints on the victim’s face and
There were discernible
that death
medical examiner surmised
forehead.
Ibid.
*45
single
rather from the sum of
a
blow but
resulted not from
response
to the
After questioning, gave further defendant a more detailed account of the homicide: * ** thought gun I something, A. had a he or knife or cause he was too gave anxious to come at me. before I And, um, had him a chance do such, gave enough when he me walked towards cause its a narrow I him room, room get enough close to me where when Ime, he moved to the side pointed grabbed I him and threw him back over know. it me, you And, um, grabbed method I learned from the Marine I him, threw knee Corps. my up him threw down on it him locked like kept restrain him. IAnd, *46 gonna just he rage seen that wasn’t cool out and he broke into a and we scuffled for a few. resisting He was at this Q. time? Right. just tight A. I And, um, held on to him as I could, as and he relaxed strangle thing for a second. I Now, know when the first you somebody gave out. I they assume that’s what As as of pass soon I a little bit happened. go. again strength is to let him He leeway broke on me and he had that I’ve go never felt before and I knew Iif let him it was either or him. me That’s grabbed grip go I when him with the death and didn’t let him for at least thirty to a half or a minute even a minute. When he had no more movement in his go. something I him I let could see then I I body, did didn’t want to tongue sticking do because his was the of out side his mouth. I don’t puffed if know he was dead at that time. I I could have saved his life if would Maybe right I but I didn’t do that. was ambulance, the and an called away have police a I find no I him for didn’t weapon. to death searched and, um, weapon.
scared something him and dollars on the had about some, sixty He about forty only camouflaged him drugs. I I didn’t too, carried, push I took I body, both. anything like that. the stairs or down a manual stran- describes murder Defendant’s statement survive, struggled of the victim to gulation in course the which rationally infer that the victim jury a could and from which both, pain, or psychological before experienced physical strangulation necessarily involves the infliction Manual death. after he pain. statement indicated that physical Defendant’s of out,” grip; “pass[ed] he relaxed his the the assumed victim “grabbed him with the struggled and defendant then victim ** least go let him It would at have grip and didn’t death have from defendant’s jury to inferred been rational for kill a decision to defendant made calculated statement that intending strangulation and so to cause by manual did victim actually intended pain before death. Whether defendant severe debatable; is, course, death but pain inflict severe before to evidence, comparable to the is at least evi- qualitatively, that a in which we have held adduced in other cases dence raised. issue had been
II. aggravating factor Although supporting I view evidence jury question, c(4)(c) minimally presented sufficient to have a as prosecutorial I for the exercise am troubled about basis try this resulted in the determination to as discretion that frequently had to ex have occasion cápital-murder case. We prosecu press exercise our concern about standards penalty specific cases. In seek death torial discretion to A. we supra, 2d ac McCrary, prose inherent in the knowledged charging discretion the broad right pre-trial review of recognized cutorial function but verify that the extent sufficient aggravating factors an aggravating adequate justify submission an evidence Ramseur, 142-43, 478 we jury. A. 2d 339. factor to Id. *47 anticipated consider, the need to in the proportionality course of review, “whether to address possible concerns about of misuse * * * prosecutorial including discretion in the all review cases in prosecutor which the had the discretion to seek the death 106 N.J. at penalty.” A. 2d in Additionally, 188. Koedatich, 112 (1988), encouraged A.2d 939 we prosecutorial adoption guidelines the of in designa to assist the capital of tion cases: recognize greater guidance prosecutors they attempt the need for for [W]e as perform duty enforcing their constitutional of this statute. Other death penalty jurisdictions validity prosecutor’s have held the exercise of depends solely charging discretion on whether a factual basis exists for the of ** * aggravating Nevertheless, promote factors. we believe there is need to uniformity penalty, in the administration the of death which will anbe addition- safeguard against al arbitrariness and an assistance to this in its Court developing proportionality review. Accordingly, General, strongly Attorney we recommend that the the Prosecutors, County Defender, adopt
various
in consultation with the Public
guidelines
by
throughout
prosecutors
determining
for use
in
state
capital
(citations omitted).]
selection of
cases.
[Id.
A.2d
Koedatich,
Handler,
Justice
dissenting
expressed the view
lack mandatory prosecutorial
of
standards constituted
unacceptable
an
Capital
flaw
our
Punishment Act:
Ramseur,
As I intimated in dissent in State v.
the breadth
definition
murder,
capital
meaningful narrowing through
absence of
the consider
factors,
aggravating
jury’s
ation of
renders the
discretion standardless. The
prosecutors
infirmity
absence of
standards
such a scheme redoubles the
unguided
plague
jury’s
discretion because the flaws that
function in the
guilt-phase
penalty-phase aggra
statute —the failure of the
definition and the
vating
guide
replicated
prosecutorial
factors to
discretion —are
in the absence of
405-06,
(Handler, J., dissenting).
standards.
In case the evidence of defendant this essential confession, Perry In that is his to the homicide. confession victim, himself an altercation between recounts did intend to kill the victim but repeatedly states that he gives him. rise to several valid only rather to subdue This respect to murder conviction. claims of reversible error relating error to voir Defendant also makes claims reversible Additionally, claim that defendant makes broad-based dire. representation virtually constitutionally-deficient he received prosecution. stages in the all
The Court reverses defendant’s death upholds sentence but non-capital agree conviction for I murder. with the Court’s reasoning prejudicial but believe that error also surrounds murder, defendant’s for non-capital conviction justifying a re addition, versal conviction. while the Court reverses penalty, finding the death support insufficient evidence to factor, aggravating 2C:11-3c(4)(c), sole N.J.S.A. there are addi tional substantial claims of error relating penalty phase to the that the neglects Court to address but nevertheless should subject emphasize be of comment to that such errors are *49 capital-murder prosecutions. in tolerable reasons, my These continuing as well as conviction that our death-penalty enacted, construed, statute is unconstitutional as applied, e.g., Frisco, and v. Di 118 N.J. 571 A .2d (1990) (Handler, J., concurring part dissenting and part), impel me to write separately.
I.
surrounding
The Court reviews the
empaneling
facts
the
of
jury
nothing
the
but
respect
phase
finds
untoward with
to that
prosecution.
of the
Ante at 154-158. I believe the selection
jury
involved reversible error.
spanned
days.
The voir
Initially
dire
five trial
the trial court
provided prospective jurors
an
charges
with
outline of the
and
function,
of
jury’s
an overview the
the bifurcated nature of a
ease,
capital
aggravating
mitigating
and the
of
role
and
factors.
Next,
panel
prospective
each
jurors completed
question-
a
covering
general
naire
background, exposure
their
to the case
anyone involved,
acquaintance
or
association with law-en-
personnel,
forcement
criminal-justice system,
views on the
abili-
law,
addition,
toty
questionnaire
follow the
and the like. In
the
potential
to
prejudice engendered by homosexuality
referred
or
illegal drugs.
questioned
use of
prospec-
The court then
each
juror
problematic responses
proceeding
tive
about
before
to
qualification.
respect
death
qualification,
With
death
the
questions
of each
virtually the same series
court asked
trial
willing
person
was
to discuss
whether
potential juror:
“openly
freely,”
and
penalty
death
her
about the
or
beliefs
penalty,
opposed
the
person inflexibly favored
the
whether
was,
opinion
penalty
the
person’s
death
generally what
juror could and would follow
prospective
and whether
strongly
she
juror indicated he or
charged.
as
If the
law
punishment, the court asked further
opposed capital
favored or
ability to
person’s
decide
issue
regarding that
questions
despite
her
law
his or
beliefs.
pursuant to the
and
punishment
challenge
brings
plain-error
voir dire
a
Defendant
whole,
among
points,
arguing,
other
a
process as
interrogation
superficial and insuffi-
death-qualification
opinions
to determine
permit
the court
counsel
cient
jurors.
prospective
and views of
capital-murder
only duly-qual-
trials
It is
well-settled
guilt of
a defendant’s
may
empaneled
be
determine
jury
ified
verdict,
and,
“guilty”
whether the
if there
capital-murder
heavy
special respon-
jury’s
deserves to die.
defendant
cases,
unique. In such
capital-murder case are
sibilities in a
high
qualified in order to assure that
specially
must be
crimi-
impartiality essential to determine
degree
fairness and
Oklahoma,
Ross
guilt
appropriate sentence.
nal
*50
2273,
(1988);
81,
Bey,
80
v.
101 L.Ed.2d
State
U.S.
108 S.Ct.
(1988)
II);
v.
123, 151-54,
(Bey
A .2d
State
112
548
887
N.J.
248-54,
(1987);
123,
.2d
v.
Ramseur,
524 A
188
State
106 N.J.
(Williams I).
61-62,
(1983)
39,
.2d641
Williams,
459 A
93 N.J.
imperative
is an
condi
adequate juror qualification
Because
extraordinary impor
capital-murder prosecution,
tion
a valid
particularly
death-quali
to
dire and
tance attaches
the voir
152,
II,
189
Marshall,
1, 216-17,
fied. See State v.
123
586
N.J.
A.2d 85
(1991)
J.,
(Handler,
dissenting).
particular,
potential
all
jurors must
“thorough
submit to
searching inquiry by
trial court
concerning
into each individual’s attitude
the death
Williams,
penalty.”
393, 413,
v.
State
A .2d1172
(Williams II).
(1988)
juror’s
The examination of each
on
views
capital punishment
particularly
must
probing
be
his
ensure
ability
comply
or her
governing legal standards,
with the
open-ended questions
required
jurors
fully
are
so that
can
express their
Hunt,
views in their own words.
v.
(1989);
II,
Defendant death-qualification that the trial court’s questioning “perfunctory” garner adequate and failed to information, so the attitudes the prospective jurors ADP’s, Noting persons remained unknown. no who would automatically death, identified, impose vote to were and that potential only jurors two were excused of death because scru- ples, argues questions posed he that the leading, were closed- ended, preserve juror framed for service. examples
Several can cited. In the juror be examination of day, juror Porter on the generally Kathleen first revealed “there she believed are some crimes that deserve the death penalty,” questioned but she was not about further which she Similarly respect crimes believed death. warranted qualification Matrange, the death of alternate Linda she indi- penalty cated that she “favored” death depends but that “it situation”; however, explain she was not asked to what impel situations would or would not her to favor a death Benedict, juror, sentence. generally Another John indicated *51 prison, than but penalty was a better deterrent the death that questions that masked posed only closed-ended the court then thinking. death-qualification juror’s The insight into the real similar. jurors other thirteen sworn was questioning of the searching inquiry demands more firmly that our law I believe Moreover, the penalty. jurors’ views on the death into the empaneling jury of the objections by counsel to the absence infirmity inherent not overcome the in these circumstances does judicial responsibility to inadequately-qualified jury. The in an jury capital-murder prosecution in a properly-qualified secure a Marshall, supra, 123 See State v. nondelegable. is J., (Handler, dissenting). 586 A. 2d 85 juror penalty the death response by potential That the sufficiently cases and not others is not appropriate some clear; adequate an should be it cannot constitute informative juror be conscientious for the conclusion that a will basis critical in the distinctions that are attempting to understand capital-murder trial and will be deciding guilt and sentence in a special principles of law in the assessment to follow the able guilt juror- determination of sentence. evidence and here, view, adequate to process my was not qualification I jurors’ capital serve in a case. submit fitness to evaluate general challenge to the voir dire should be defendant’s sustained.
II.
A. (cid:127) claims that serve to Defendant raises several substantial such claim reliability his murder conviction. One impugn the Gerald, of principles is based on violation (1988). argues that the record A .2d792 Defendant knowingly convicted him of does not disclose whether injury knowingly causing bodily serious causing death or of order to resulting recognized have in death. We “[i]n
191
death-eligibility,
jury
establish
the
must determine that
knowledge
defendant had
purpose
or
kill
to
and not the
knowledge
purpose merely
bodily
to inflict serious
injury
happened
that
to
439,
result in death.”
Long,
119 N.J.
(1990).
575
2dA. 435
Defendant contends that the facts
rationally supported
adduced at trial
the lesser murder offense
and
jury
constitutionally required
therefore that the
was
to
Gerald,
draw that
supra,
distinction. See State v.
113
atN.J.
92,
finding
punishable by
that form murder that is not
death.
407, 412-14,
(1990),
.2d
Harvey,
581 A
See State
—
denied,
-,
the evidence could induce a subtly charge jury the failure to could offenses; the more serious prevent support deflating weight in order to conform to lesser from of the evidence charge. jury might not the Court overlooks here is that the What conveniently rejected manslaughter evidence of a form of had it been have so readily range N.J. given full of choices. 558 A.2d [115 407, 409-10, appropriate, (footnote (1989) (Handler, omitted).] dissenting) J.,
B. murder, knowing charged In addition to the trial court also aggravated manslaughter manslaugh- and reckless argues plain Defendant the trial court committed ter. charge failing sponte pas- error in sua self-defense and sion/provocation manslaughter, and that the omission of those right jury charges process violated his to due of law.. The Court, view, improperly, my rejects those contentions. Ante at 158-165. obligated charge
A trial offenses court is lesser “when appropriateness charge,” ‘clearly facts indicate’ of that Choice, irrespective parties’ wishes. State v. (1985) Powell,
295, 298,
(quoting
A .2d 364 police The record discloses that defendant told that “there dispute over monies.” victim came to 762 Division “home”) (alleged get Perry Street in Camden be to sell him, drugs enraged Perry for and became when refused. and, so, got I argument. “When resisted to do we into an I did not mean to kill this man.” Redd Perry. cursed and came at Perry, “shooting up” drugs, syringe who was removed the “you wait,” told Redd fuck up better back the Redd but [Perry] something” (meaning “came at as if he had a knife or gun carry). he was known to Defendant asserts that he grabbed him, then Redd to “restrain” and subdue but when he “gave go,” leeway a little bit of is to let him Redd me “broke on again strength and he had that I’ve never felt and I before go if I him knew let it was either me or him.” That evidence supports charge. a self-defense Self-defense involves a reason able, incorrect, victim, if forcibly even belief that the “unless prevented,” bodily injury. will inflict fatal or serious Bowens, supra, 108 532 .2d A 215. The evidence rationally Moreover, suggests possibility. support other by the self-defense claim identified defendant includes the tall, drug dealer, fact that the victim was six feet an established armed, usually and, and often cheated his customers inferential ly, prone engage was therefore in violent confrontations. proffers
The State its own version of the facts to contradict a say basis for self-defense. it Suffice that either version parties rationally advanced could inferred be from defen- *55 However, jury might easily reject dant’s statement. “[t]hat
195
inferences
view
facts and draw
different
defendant’s
moment,
of no
from those reached
defendant’s brief ...
is
”
dispute.’
was room for
for
test is whether there
State
‘[t]he
415,
(1990)
Mauricio,
(quoting
117 N.J.
Despite appropriateness charge the the of self-defense based evidence, charge suggests the the Court that a of self-de on contrary directly position defendant’s fense would have been possessed prejudice the might capacity trial and have Choice, knowing supra, chances on murder as discussed A.2d Ante at 162-163. 833. however, charge self-defense, necessarily con- A does not of crime, presence scene at the of because cede defendant’s jury is only to be if the otherwise the defense is considered satisfied, contentions, contrary that defendant over defendant’s See, Charge present. e.g., Jury Model Criminal to 2C:3-4. Here, charging self-defense would have had little respect to the potential prejudice defendant’s chances charge knowing there was other evidence of murder because balance, present. Accordingly, on it was that defendant was charged defense. plain error the trial court not to have reasoning, charge to a By similar defendant was entitled rules to the manslaughter. The Court passion/provocation contrary. at 159-161. Ante if manslaughter “committed in the heat
Murder
reduced
resulting from
passion
provocation.”
a reasonable
N.J.S.A.
2C:11-4b(2).
manslaughter,
aggravated
reckless
Unlike
murder,
knowing
mental states different from
which involve
mitigation
intentional murder
passion/provocation involves
provocation.
objectively
existence of
reasonable
because
(1986).
Grunow,
A .2d
manslaughter
must be
has four elements:
provocation
Passion/provocation
off
not have had time to cool
between
the defendant must
adequate;
slaying;
must have actually impassioned
and the
provocation
provocation
have
cooled off before the
must not
actually
defendant
defendant;
*56
slaying.
(1986)
Substantive
Criminal Law
&
at
Scott,
7.10,
[LaFave
§
].
objective,
subjective.
slaying
The first
two criteria are
the other two
If a
does
include all
elements,
of those
offense of
man
passion/provocation
slaughter cannot be demonstrated.
Mauricio,
117 N.J. at
[State
supra,
2d A.
879.]
I
appropriateness
passion/provocation charge
believe the
of a
fairly
evidence,
including
inferable from the
defendant’s
account of the altercation between himself and Redd. The
provocation
appeal
on
engaged
asserted
is that the two were
in
during
impassioned.
“mutual combat”
which defendant became
Mauricio,
supra,
See
(physical
Accordingly I failing believe that the trial erred in court charge passion/provocation manslaughter.
C. surrounding Related to those substantive errors defendant’s relating way murder conviction errors are to the which the charged. count, homicide offenses murder were On the murder, charged jury trial court knowing aggravated on manslaughter, manslaughter and reckless in that order. The begin deliberating court jury knowing instructed the on aggravated manslaughter murder and to only move on if the jury acquitted Similarly, defendant of murder. manslaughter only acquit- to move to reckless after instructed ting aggravated manslaughter. sequential noted the implications
The Court has the use passion/provocation instructions relation to man homicide *57 194, 223-24, slaughter. Coyle, v. 119 574 A State N.J. .2d 951 (1990). “In The Court there said: murder cases which there passion/provocation a is evidence of ... court must take addi issuing care those tional clear instructions. In cases a .in sequential charge coupled inadequately with an instruction that greater the can defines elements of the offense ... mislead the not, charge inadequate.” is did jury. Such a The Court how ever, expressly prohibit sequential charges the use of where passion/provocation. is of ibid. I there evidence See am repeat Coyle: constrained I stated to what recognized jury either We have that a should not be directly consistently to reach a v. 79 N.J. Simon, conditioned verdict. State subliminally particular (1979); 206-08 v. 90 122-23 117, A.2d see State 191, 861] Collier, [447 [398 (1982). encourage charge a to A.2d The hierarchical has clear 168] capacity turning guilt jury jury to because the must before lesser-in determine acquit guilty jury first find not cluded offenses. Because must a defendant charge jury greater limit its such a coerce the freedom offense, may consider lesser-included offenses. [********] give jury the most the court complete cases should capital only range covering homicide but also it offenses, of choices assure verdict possible guilt is offense, widest to determine and decide which if any, opportunity
justified
e.g.,
566
A.2d
See,
Rose,
454,
[548
the evidence.
State v.
112 N.J.
by
(1988)
charge goes against
(Handler,
dissenting).
this
The hierarchical
J.,
1058]
jury
grain.
The
offenses under which the
hierarchical submission of
required
considering
guilty
greater
of
offense
lesser-in
to find defendant not
before
range
of
choices and reduce the
cluded offenses serves
narrow the
available
guilt.
288
619,
207,
v.
Mich.
N.W.2d
[407
determine
People Mays,
capacity
(1978)
(1980)
Ogden,
1052
1049,
v.
P.2d
].
211-12
State
580
Or.App.
];
[35
in a
case
a determination of the
This concern is critical
where
capital-murder
greater
defendant to the
intentional
will
offense,
murder,
expose
automatically
jury
objectively
able to
this
If the
has not
been
reach
death
fully
penalty.
its
on lesser-included offenses have been
conclusion, because
deliberations
brought closer
will
to a death
the defendant
have been
short-circuited,
unfairly
give
jury an order in
which
sentence. The court should
its instructions
jury to consider lesser
considered but
allow the
offenses are to be
specifically
guilt
greater
before it
offenses
has determined
on the
offense.
N.J. at
[Id.
(Handler,
concurring
dissenting).]
Juror the distinctions the several requires permitted forms of homicide that the be to make comparisons cross-references and several offenses dur- ing guilt. course of its deliberations on ultimate sequential, hierarchical instruction forecloses that kind deli- process by blocking berative concomitant consideration offenses; less manslaughter strong serious it has a capacity *58 prematurely guilty to induce a on the verdict most serious form When, case, homicide. this as the most offense serious is murder, capital sequential charge fundamentally unfair.
D. sum, failing In charge trial court erred to Gerald, 40, accordance with v. supra, 113 549 A N.J. .2d 792; by failing charge sponte passion- sua self-defense and provocation manslaughter; by giving sequential and a homicide when passion-provocation instruction there was evidence of view, manslaughter. my any In all and of those man errors date the reversal of defendant’s murder conviction.
III. alleges performance Defendant that defense counsel’s during stages prosecution deficient severely various and
199 prejudiced right his case violation of his to counsel under the I, sixth amendment to the United States Constitution and article paragraph Jersey of the 10 New Constitution. The ineffective- counsel, according defendant, ness of includes counsel’s investigate present guilt failure and viable defenses at the trial, phase present and any of penalty- semblance Court, phase finding grounds case. other for reversals of guilt penalty, dismissively. treats those contentions Defen- complaint, in my opinion, dant’s is valid and underscores a profoundly aspect troublesome of this appel- Court’s attitude on late review toward claims of ineffective impor- counsel. Its tance merits comment. actuality, ineffective-assistance-of-counsel claims are es-
sentially allegations that the trial was unfair. “The benchmark
judging any
claim of ineffectiveness must be whether
proper functioning
counsel’s conduct so undermined the
process
having
adversarial
that the trial cannot
relied
be
on as
produced just
result.”
Washington,
Strickland v.
466 U.S.
2052, 2064,
674, 692-93,
104 S.Ct.
80
reh’g
L.Ed.2d
denied,
1267,
3562,
(1984).
467
104
82
U.S.
S.Ct.
L.Ed.2d 864
prevail
In order to
defendant must show
objective
that counsel's
fell below an
standard of reasonable-
representation
ness, Strickland,
466
at
80
104
U.S.,
688,
674,
L.Ed.2d
S.Ct. 2052
[at 2064],
that there exists a reasonable
but for counsel’s
that,
probability
unprofessional
proceeding
Id. at
the result of the
would have been different.
80
errors,
694,
v.
U.S.
L.Ed.2d
S.Ct. 2052
477
[Kimmelman Morrison,
674,104
[at 2068].
365,
(1986).]
106 S.Ct
91 L.Ed.2d
2574, 2582-83,
standard,
Fritz,
We endorse that
State v.
A.2d
(1987),
apply in capital-murder prosecutions.
it
Davis,
(1989).
strong presump
A
With penalty phase, argues also defendant trial investigate present counsel’s failure to relevant miti- gating' of testimony family evidence the form members school, military, detailing and medical records his troubled background right childhood and violated his to effective assist- only ance of Apparently, counsel. aunt defendant’s was inter- telephone by viewed on the investigator a defense about a week began, prepared before the trial tell the learning neglect. defendant’s disabilities and childhood Defen- argues dant family also that other members had relevant character, information his upbringing, past experiences, about difficulties, relationships, and but were never interviewed counsel. also documentary evidence, He identifies relevant *60 possession use, some that trial counsel had in their did but appellate obtained, and some that counsel complement that both family’s possess independent information and mitigating weight.
There was evidence of defendant’s mental and academic struggles addiction, drug deficiencies and his with as well as military Perry records that show that discharged from the Corps Marine due to his limited ability. mental Yet trial expert. counsel did not have defendant Appel- evaluated an late Bogacki, counsel obtained an evaluation from Dr. in whose opinion functionally defendant is illiterate and has low intellec- functioning underlying learning tual and an disability. Dr. Bogacki cognitive, personali- believed that “the combination of ty[ played significant and substance abuse factors no doubt ] emergence role in the patterns antisocial of behavior throughout lifetime.” [defendant’s]
Defendant contends that all of the above information about
experiences,
deficits,
his childhood
mental and emotional
struggles
drug
capacity
engender
addiction had the
sympathy, understanding,
mercy
jurors,
in the minds of the
investigate
and that counsel’s failure to
those
sources
evi-
thoroughly strip any
dence
present
decision not to
that material
presumption
attorney
reasonableness.
In
Savage,
(1990),
120 N.J.
It
complaints
be that defendant’s
*61
approximate
do not
engendered
those
in Savage and that the merits of defendant’s
complaint cannot be resolved on this record. But defendant
plausible argument
makes a
that he did not
sufficiently-
have
skilled
attorneys.
defense
This case
inadequa-
underscores the
cies
professional
of the standards of
competence required in a
capital-murder prosecution.
professional
The basic test of
com-
petence seems
regarded
to be that which is
as
in
reasonable
average
terms of an
attorney or is
by
measured
the task to be
accomplished. The Court’s
provide adequate
definitions do not
guidance. Thus,
case,
in this
problematic
counsel’s
representa-
equated
tion is
with effective assistance of
apparently
counsel
competence
because his
of
average
level
ordinary.
That the Court’s test for assessing attorney competence does
not
sufficiently high
assure a
of attorney performance
level
in
capital-murder
the defense of a
prosecution is clear. The level
competence
of
general
suffices for
criminal defense work
satisfy
cannot
heightened
fair-trial
apply
standards that
capital-murder prosecutions. State
Savage, supra,
v.
120 (Handler, J.,
The substantial and numerous differences capital between non-capital prosecutions compel, criminal as a matter law, adoption state constitutional of an enhanced standard competence which to measure the degree counsel and the prejudice right sufficient to find a violation to such 544-45, Oglesby, supra, assistance. See State N.J. at (Handler, J., concurring). 585 A.2d professional performance The enhanced level of demanded capital prosecutions appear does not to have been achieved this acknowledge case. Court’s failure to that should judicial engender complacency performance with counsel’s such cases.
IV. alleges prosecutorial Defendant cumulative effect *62 right misconduct resulted in denial of his to a fair trial agree under the federal and I state Constitutions. that contention, while the Court does not. Ante 166-170. Defen- dant prosecutorial contends misconduct all related culpability to the Miller. Clark He asserts that defendant selectively prosecuted, culpability was while Miller’s was investigated, prejudiced by and that defendant was further Brady Maryland, 373 U.S. S.Ct. L.Ed.2d [v. (1963)] violation when turn failed to over to portion report defense the crucial of the Miller’s polygraph makes He inculpatory wherein he admissions. also claims that grounded entire State’s case was on the “fundamental misrepresentation” had that defendant alone committed the crimes.
An in- overview evidence Miller’s involvement is 2, 1986, On Sunday, Perry report- structive. March Miller police they body ed to found a had basement Perry’s police The and noted house. interviewed both a contra- Accordingly, their diction in stories. each volunteered to sub- Perry mit polygraph examinations. was “escorted immedi- purpose. prosecutor’s evening office that for that ately” to the right of his to counsel the examination ceased. invocation On 3, 1986, following day, March men returned to the both building Perry to be examined. was taken police administration interview, began pre-test scheduled examination and to the to be cut short soon thereafter because he was the test had but during pre-test intoxicated. He did tell Examiner Bandock up together that he and Miller had boarded interview preceding Friday, financially on the that Miller Division Street habit, drug had in 762 supported his and that the victim been drugs. prior dealing occasions Defendant Division Street on transported Cooper for a “sex kit” then Medical Center was test, police taken to the but refused to wait and was back building. The record does not disclose what administration meantime, waiting doing in the he was at the Miller was but Perry togeth- men left police station when returned and two er. day, Investigator Milbury received information
Later that pupils helped Perry secure from teacher that two of his had Lewis, boys, Troy Hunt and Todd con- the house. The two Miller also said in his statement that firmed that. Todd Lewis house, began and had present when the work at the had been being Troy nailed shut. as the basement door was watched Miller, he sent to call and that Miller had Hunt said that Perry nail shut the basement door. arrived and watched for his morning of March Miller arrived On the appear later polygraph and said that defendant would but Philadel- drugs. intended to first use Miller was sent back to *63 Perry police. He returned at phia to locate and deliver to the noon, unsuccessful. approximately given polygraph p.m. on date Miller was At 12:04 that 28th, it, Friday, February he examination. he stated that on him purchase drugs and had left Perry had taken to Camden to drugs. inject to those He returned on at 762 Division Street neighborhood boy boys and two call from a to find defendant window, securing the front door and á leaving, later defendant. He did not return to the house until Sunday, at they which time body. being found the On informed that was it the opinion truthful, examiner’s that entirely he had not been truth, Miller admitted that he had not told the whole on that Sunday help defendant asked body, saying had him to the move that “if police worse came to worse he would tell the he that used him as a weight alibi and would take himself and gotten should body way.” have rid his own Miller also having purchased drugs admitted from the victim in past. Miller subsequently refused to any questions. answer more during polygraph
Defendant’s statements examination afternoon, confession, that same and his conflicting offer ver- sions complicity. range of Miller’s The statements from Miller having by himself, it, the killing done to both them doing Perry being responsible. alone example, For Examiner Ban- dock noted that after he had Perry determined psycho- that was stressful, logically Perry first said that he had discovered body in the house on Thursday and that he and Miller had discovered, nailed the door shut it planning so would not be Sunday dispose return on of it. He then said that Miller had body showed him the in the Thursday basement on that proceeded two body men to hide the the corner of Perry basement. next said that he wanted tell the “whole story” and stated that Miller killed in the had Redd house Thursday. Perry then admitted that he had killed Redd and helped body. During that Miller had him hide the the subse- confession, quent taped Perry first stated Miller present hiding body and aided but later retracted and indicated that Miller had not been involved. following
Statements friends of the victim taken in the week also relate to Miller. Walter Pitt stated that he saw selling midnight drugs Thursday victim at about on before leaving He with defendant Miller. next saw defendant the day following selling at noon on the corner same victim’s Turner, however, coat to Charles Turner. Charles said he had *64 at house on Wayne from Robinson Robinson’s bought the coat he had p.m., and that Robinson said Thursday at about 7:00 Perry said that he had seen bought Perry. Turner also it from drugs past. the corner in the together buying and Miller in Thursday or six that on at about five Tony Floyd said guy” talking Perry and the “white evening he saw Redd left with them. (Miller?) corner and that Redd on the impli- gave statements that also cell-mates of defendants Two 1986, prior given by Leroy April Harris in was cate Miller. One trial, Harris, Jury proceeding. who testified to the Grand picked up him that defendant and Miller had Perry said told him, Redd, and Miller had orchestrated the defendant had killed in body faggot” and its concealment disguise of the as “a basement. capital-murder charged with
Although defendant was
offenses,
charged only as
Miller was
other serious substantive
hindering apprehen-
and with four counts
a material witness
Jury,
against
to a Grand
sion. The cases
them were submitted
of the crime
Investigator Milbury testified to the details
Jury
at an
investigation.
prosecutor
told
Grand
together,
up
loose ends
session that he
“tie
some
initial
would
in
regard to
of Clark Miller
specifically, with
the involvement
“Mr. Miller was not
Milbury later testified that
the case.”
respect to Miller
any way,”
and that with
involved
“[t]he
charges
this
no
on those
because at
State recommends a
bill
that would indicate that he
point
have no additional evidence
we
testify
Miller
called to
before
Grand
was involved.”
was
any questions.
Jury but declined to answer
Miller,
a “sim
prosecution
Defendant claims selective
prosecuted, and
ilarly
wrongdoer,”
not indicted or
situated
by
prosecute
indict or
was motivated
that the decision not to
(he and Miller is
illegitimate racial considerations
black
heightened
white).
expression of
He relies on this Court’s
capital
cases.
regarding arbitrary
action
the State
concern
Ramseur,
Recently,
Frisco, supra,
in State Div.
118 N.J.
571 A.2d
argued
prosecutor
the defendant
that the
had abused his
failing
investigate
discretion in
prosecute
putative
and
a
accomplice. Di Frisco confessed
he
killing
that
had done the
at
Only
the behest of one
Di
Franciotti.
Frisco
prosecuted
for
crime. The Court noted that the
claim
defendant’s
prosecuted
Franciotti should have
on
been
rested
his assertion
failing
that the
prosecute
support.
State’s reasons
lacked
267-68,
Id.
914. The
A.2d
Court
concluded
State’s belief that
it had insufficient
prosecute
evidence to
deference, given
Franciotti was
entitled
the scant evidence
generated
investigation.
after some
here
similarly
Court
concludes that
has
defendant
failed
presumption
to overcome the
Government’s abandon
prosecution against
legitimate
ment of
Miller was a
exercise of
may
discretion. Ante at
It
168.
be that
has
defendant
prosecutorial selectivity
demonstrated
illegitimate pur
for an
pose.
point, however,
The critical
is that
presented
the issue is
and resolved
exclusively
way
an ad hoc basis that in no
can
objective
ensure the
capital-
and even-handed administration of
prosecutions.
case,
murder
The vice in this
in
and the flaw the
acquiescence
position,
Court’s
in the
State’s
the absence of
general,
any
prosecutors
uniform standards that
must follow
apply
determining
against
in
and
whether
whom to mount capital-murder prosecution. See,
Marshall,
e.g.,
supra,
250-52,
(Handler, J., dissenting);
123 N.J. at
2d
586 A. 85
State
Frisco,
302-05,
supra,
(Handler,
v. Di
V. expressed, part I in For the reasons dissent from the Court’s opinion judgment. part; part; reversal in remandment —Chief Affirmance CLIFFOED, POLLOCK,
Justice WILENTZ and Justices and GAEIBALDI—5. O’HEEN Concurring part; dissenting part —Justices HANDLEE and STEIN—2.