State v. Purnell

601 A.2d 175 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW PURNELL, BRAYNARD DEFENDANT-APPELLANT. Argued 7,May January 1991 Decided 1992. Defender, DeCastro, Deputy Public Assistant Bernadette Defender, argued Smith, Jr., Deputy Public K. James Defender, Caraballo, at- Public appellant (Wilfredo cause for Smith, DeCastro, K. Claudia torney; James Bernadette briefs). II, Defender on the Deputy Wyk, Public Van General, argued Iammatteo, Attorney Deputy M. Sandra (Robert Attorney General Tufo, respondent J. Del the cause for attorney). Jersey, of New delivered opinion of the Court was

O’HERN, J. question

The central capital in appeal this is whether a jury may impose a sentence of death on the basis that the murder was in committed the felony course of a being without permitted consider, guilt-innocence in the phase capital of the trial, non-capital the verdict of felony murder. We find such a procedure to constitutionally be right defective. The to trial jury right includes the jury to have the consider “all of the possible might offenses that reasonably be found” from the Ramseur, facts of a case. 271 n. N.J. (1987). A.2d 188 The State is not free to select which verdict it permit will capital jury By seeking to return. a sentence of predicated death on an underlying felony committed in concert murder, with the the State necessarily affirms that there is a rational basis in the jury evidence for the to have considered non-capital the felony Here, verdict of however, murder. State did not submit jury. Because the jury permitted was not possible consider “all of the of fenses,” defendant right was denied the to a fair trial on the issue death-eligibility. of his The sentence of death must be vacated. The convictions of murder and related offenses en guilt-phase tered in the of the trial are otherwise affirmed.

I A. cases, In long series explained we have that a must decide death-eligibility defendants. The fact- finding role of especially when, case, crucial as in this the State and disagree the defendant every on almost fact alleged. The victim, State asserts that defendant killed the Talley, during Lawrence drug course of a transaction and that defendant drugs body then stole from the of the victim. regard, In that pattern case evokes the that we saw in Perry, (1991), 590 .2d624 in A which the drug supplier. defendant killed his markedly case differs any though, that defendant denies involvement Perry, from killing Perry Recall that in at all victim. grabbed “by defendant admitted that he had the victim pressure my grip strangled “the him.” at neck” and that Id. 140, 590 A .2d 624. sought impose

Although the State to sentence on robbery, in of a murder committed the course of a it basis Nevertheless, robbery. not indict defendant for the at the did guilt phase night the State offered evidence that on the possessed pack- murder defendant had an amount of cocaine aged ziploc bags, by drug in known to used in his be victim Having any denied in the kill- trade. involvement whatsoever ing Talley, position of Lawrence defendant was not argue uncharged robbery provided that an the basis Nevertheless, felony-murder for a verdict. the court had a nondelegable responsibility to insure a fair trial.

B. killing clearly implicated The evidence defendant in the Ateo, Friday, August Talley Jersey, Lawrence in West New review, purposes largely incorporate we shall 1988. For theory defendant’s of the facts. It was the State’s version Talley during attempt- defendant had stabbed the course of an drug body hedgerow and had hidden the in a ed transaction backyard, days defendant’s where it was found two later. Talley Because no one saw defendant and ever stab because connecting physical there was no evidence defendant with the crime, entirely case circumstantial. State’s drug transaction. witness, Simmons, prosecution

A testified that defen- Marie dant would come to her house “two to three to four times out “get high” usually that he the week” to on cocaine and [of] meaning brought “twenty,” with him a an amount of cocaine Friday, August valued at She testified that on $20. approximately p.m., 6:00 had come to her home and defendant sixteenth,” meaning had wanted “a approximately one and one- grams half request of cocaine. On defendant’s she went to a neighborhood playground Talley negoti- where she met with drug ate a They transaction with him. disagreed over the purchase price, Talley but said he would stop her house Instead, Talley confederate, Davis, later. sent a Jeffrey to sell bag of cocaine to and $20 defendant Simmons. Defendant because, testified, refused that deal as Davis defendant “want- bigger ed a quantity.” After left apartment Davis defen- dant playground went to the himself to with Talley. meet playground defendant, Talley, Witnesses at the testified that playground together. According Davis, Davis left although initially he Talley, had walked he accompany house, did not them to defendant’s to defen- due objections presence. dant’s to his backyard. The fight in defendant’s The scene now shifts to defendant’s home on Pine Avenue. Dia, Shortly p.m., daughter, before 9:00 defendant’s heard “a noise, lot of lot hollering” backyard. their Dia ran brothers, accompanied by outside her Lord two Dennis and Tee. (Defendant only is the natural father of Dia not of her and brothers. natural of all Gretchen Shaw is the mother three fiancee.) children and is defendant’s a machete Dennis.carried outside, “[sjomebody outside Dia with him. Once heard run- ning through person yelling, woods” and leave me the “don’t approached backyard, Jeff.” her As she the Dia saw father grappling Eventually, men man. fell to with another two the ground, the her Dia father hit the top. with father on saw her approximately man two Dennis and Lord Tee saw times. defendant two men into woods. Dennis heard “scuf- chase fling saying, “Jeff, trying in the and someone he’s to woods” kill testified man me.” Both Dia and Dennis that the with fighting Talley. not whom defendant was was Lawrence they happening, As Lord Tee soon as saw what was Dia and police. transcribed neighbor’s ran to a house to call her “[s]omebody trying to break police, Dia stated that call to the guys jumping my are dad.” and now two my house Dennis, house, saw neighbor ran to defendant’s The gave him him, they fighting at?” Dennis was asked “where machete, neighbor “halfway went back” to and then the there his knees” a man house. He saw “back rear of the away.” alright “they got As him that he was but who told stand, him as defen- neighbor recognized began the man any or marks on defendant. He did not notice bruises dant. neighbor’s told his returned to the house and Dennis then police it was over.” they did not need the “because sister that go to defendant’s house. police The were called and told not Dia, Nonetheless, arrived, briefly police spoke with afterward, backyard. cursory search of the Soon performed a spoke Den- Jeffrey went to defendant’s house and with Davis there, nis, Talley asking Talley. When told that explained house. After Davis went to Marie Simmons’s Davis happened, called the Winslow Town- had Simmons to her what hospitals trying, without Department and local ship Police success, Talley. to locate trial, people, Ar- attempted prove that two

At Bey, had seen the alive late on the Gary thur Ellison and victim that he had seen the evening August 26. Ellison testified Inn, Maple Lake indicated speaking Bey at the but victim night. not late that had them soon after dusk and that he seen testify. Bey did not evening. remaining events Shaw, Daniels, of Gretchen night, Theresa a co-worker

That Daniels testified that at home from work. drove Gretchen house, “Lawrence, they had entered the p.m., about 10:00 after talking” in the kitchen and [defendant], and started Gretchen (Neither the defense counsel nor then into the bedroom. went her reference to the questioned Daniels on prosecutor in the Thus, is an error we assume that “Lawrence” victim. Talley.) Gretchen transcript to someone other than or refers “okay” testified that defendant had told her he was that but he any “almost had She did notice one.” marks or scratches leave, getting on As ready defendant. Daniels was defen- if drop dant asked her she could him off Maple at the Lake Inn. Inn, Once to stay at the Daniels decided for a minutes. few her Defendant borrowed car. Marie Simmons testified defendant had arrived at her house sometime between 10:00 evening, car, hatchback,” driving and 10:30that little “a brown Toyota presumably Daniels’ tan 1981 Corolla. Simmons de- having right scribed defendant as on his cut arm that “was oozing person with blood.” Another who was at Simmons’s house noticed that “a right defendant had bruise underneath Simmons, eye.” According his gave her “a six- teenth” of cocaine that he had obtained in She Camden. being ziploc cocaine as bag,” described the a “clear the same Talley. inject- sort used Lawrence allegedly Defendant then ed himself with some of the cocaine while Simmons smoked people some of Other in and it. came out of the house. left, gave Defendant but later returned and “another Simmons couple sixteenth and of twenties.” Simmons testified that stayed a.m., although defendant had at her house until 3:30 family members of his claim he was earlier home much than that. discovery body. sister, August Charlotte, Sunday, Talley’s spoke

On Jeffrey Davis and learned that her brother had not been seen days. for two She to defendant’s house to and Davis went looking outside inquire about her brother. After around the house, they spoke Defendant told them with defendant. chasing guys jumped that “two came and out the car and went * * * Feeling uneasy through the about woods.” [the victim] “big mark” story noting black and on defendant’s blue arms,” decid- his face and “all these scratches his Charlotte neighbor’s story. After go ed to check out the house to neighbors, speaking with the Charlotte and Davis returned property. they search further Soon after arrived defendant’s house, sticking noticed at the Purnell Davis a foot out of a hedgerow. Talley’s body. It was Talley

A had medical examination disclosed that been killed neck, chest, by stab to the and abdomen. There fifteen wounds back, which, on according were the victim’s to the scratches examiner, body having consistent with the medical were been Davis, Although, according night the dragged. on of the Talley carrying had murder been “a sixteenth more” of and, cocaine, drugs the except no were found on victim for a quarter body, lying underneath the no cash was found. investigation.

The Township Police went to the Purnell house and The Winslow spoke them with defendant. Defendant first told that he had Friday Talley evening. on He seen since 6:30 said that then, Talley “busy” had come his house but he had been Talley p.m. had later. that at he told come back He 8:30 said fighting backyard had two men in the and that he seen when police,” they hollered “call the had run off. He did not indicate police in the fight he had been two men. saw puncture scratches on defendant’s arms and a wound on his long, upper They approximate- hole arm. discovered shallow ly body. Conflicting feet from the twelve information was presented potential grave site was intended about whether dog for the or for a that had buried victim been elsewhere property. Dia, daughter, gave taped police Defendant’s statement fight in implicate which she did not her father in a with the men backyard. September police tape On obtained a police night made Dia on the call to the said, my guys jumping which she had are dad.” Later “two police day, gave taped Dia another statement for the first time that her had been one of the admitted father fighting. day, police men in the involved On that same police rights him of arrested defendant. After the advised his claim, aspects of a self-defense defendant admitted and of some fight backyard involved in a in his with one of that he had been men. the two unknown voluntarily appeared County before the Camden

Defendant grand jury. jurors Talley He told the that he had not seen night August gone that he had not all on the Marie house, drugs. and that he Simmons’s had used He said that police Talley he told the he had been confused when had evening. house that He related the been at his incident with backyard. emphasized initially men in his He the two he police fight had not told the that he had been involved in the body because “there’s a involved in this” and he was afraid that might he be incriminated. evidence, hair, blood, physical including

Examinations samples, any failed to clear fiber establish connection between investigation defendant and the crime. Nor did the corroborate drugs allegation the that defendant had used at Marie Sim- mons’s home.

The trial. County grand jury The indicted on Camden defendant five murder, knowing purposeful hindering his counts: and/or own apprehension by concealing body, hindering the victim’s his own apprehension by intimidating giving into a witness false possession weapon purpose, report, of a with an unlawful perjury. charges, except A convicted defendant all concealment, hindering charge concerning which had been dis- sentencing phase, In missed at trial. the State asserted two aggravating factors: that defendant had been convicted of a murder, 2C:ll-3c(4)(a), prior and that the murder had N.J.S.A. during robbery Talley. been committed the course of a from 2C:ll-3c(4)(g). redeeming N.J.S.A. Defense witnesses set forth aspects personality, good of defendant’s character and people, works that he had done for other and the fact that he using drugs. had not been

Although jurors mitigating found the three existence of 2C:ll-3c(5)(b), participated that the factor victim had in the death, jurors that resulted his and two found conduct factor, 2C:ll-3c(5)(h), mitigating jury unanimously catch-all aggravating of the found the existence two factors and that the outweighed mitigating beyond aggravating factors factors Consequently, doubt. a reasonable was sentenced to merger weapons murder After death on the count. charge, imposed non-capital the court sentences on the counts. 2:2-l(a). right appeals Defendant to us as of under Rule II — Arizona, -, U.S. S.Ct. Schad (1991), Supreme Court held that it was not L.Ed.2d require distinguish error that Arizona did not harmful premeditated returning murder and between death-eligible. plu- conviction of murder that rality in that decision reasoned that the dissent’s focus on the punishment” premeditated felony “risks of different ignored sentencing the fact that the Arizona statute murder applicable to the defendant authorized the same maximum death, committing first-degree penalty, for both means of mur- — 9, 9, at-n. at 2504 n. 115 L.Ed.2d der. U.S. S.Ct. Although opinion n. 9. no commanded five 573-74 Schad separately submitting felony-murder votes on the issue of the corollary appear to that under a jury, verdict to the its would be capital-sentencing Jersey’s scheme like New that does not make felony death-eligible, to sentence a defendant to death allowing underlying felony jury on an without the based non-capital the murder would consider verdict be constitutionally impermissible. consistently have held that all forms of homicide rational-

We evidence, ly supported by they lesser-included or the whether be offenses, jury. placed should before the To alternative be deny and thus truncate the definitions of the murder statute jury the mechanism to decide which of the forms of murder has proven unacceptable. been is 439, 462, v. Long, 119 N.J. (1990). 575 A. 2d 435 respect, that defendant’s claim of felony-murder charge entitlement to a request is similar to a for a lesser-included charge. regularly offense We have held that a defendant is entitled charge to such a if there any evidence “that would have afforded jury a rational basis for convicting” the defendant of the lesser-included offense. State Moore, 239, 290, (1988). 113 N.J. A.2d In State v. Ramseur, 123, supra, 106 N.J. 524 A.2d we held that a charge trial court jury must regarding possible “all of the might offenses reasonably be found from such facts.” Id. at 271 Although n. 550 A. 2d 117. strictly speaking felony murder is not a lesser-included offense of murder in the sense different, its elements are statutory definition of offenses, lesser-included as Sloane, we noted in State v. 293, 300, (1988), 544 A. 2d 826 is not “all-encompassing,” statutory categories nor are the “water-tight compartments.” noted, As Justice Stein has suggests Sloane that in certain circumstances, subject to requirements notice, of fair an offense, supported by evidence, if charged should be to the though even it does not meet the Code’s definition of Mancine, lesser-included offense. 124 N.J. (1991) (Stein, J.,

590 A.2d 1107 concurring). principle That “comports general with our subject view that to fair notice the degree should guilt resolve the of an actor’s on the basis of presented jury.” Sloane, evidence supra, 111 atN.J. 300, 544 A. 2d 826.

We have very held that at the core guarantee of a fair trial in a judicial criminal case is the obligation to insure that jury’s impartial solely deliberations are based on the evi- dence and are proper made in accordance adequate Simon, instructions. 79 N.J. 398 A.2d 861 (1979). Indeed, paramount duty “so is the to insure a fair trial jury that a must deliberate accordance with correct instruc- tions even when such requested by instructions are not coun-

532 Grunow, 133, 148, (1990); sel.” v. 506 A .2d708 State N.J. Moore, (trial supra, 113 see v. N.J. at 550 A.2d State charge capacity court’s failure to on diminished constitutes although charge requested by reversible error was never de counsel). Obviously, may fense there be circumstances in specifically request jury a defendant will that a which be charged on a lesser-included offense as a matter of trial strate to, gy. request Whether such a can or should acceded be case, especially capital regarding in a raises concerns the inter (represented by public jury) being presented ests of the possible may with “all of the facts and all of offenses that reasonably Choice, be found from such facts.” State v. 98 N.J. 295, 299, (1985). 486 A.2d 833 We need not debate that issue in case, nothing there is in the this for record to indicate that a specific request charge felony-murder not to was made here. Jersey subjected

New defendants cannot be penalty anything death for murder if their intent is found to be knowingly purposefully less than to cause death. State v. Gerald, (1988). If, body 113 N.J. 549 A .2d792 within the trial, presented proofs provide evidence exist a rational offense, jury of a lesser-included basis a verdict defendant constitutionally entitled to have that alternative offered for 194, 222-23, Coyle, v. deliberation. State N.J. (1990); Crisantos, 265, 276, A .2d951 see also (1986) (trial charge 508 A .2d 167 court should on a lesser- if rational in the included offense there is basis evidence offense). robbery support By relying of that on the conviction factor, aggravating necessarily an affirmed that as the State proofs provided existed that a rational basis for the death-ineligible option finding guilty of choose the deprive murder. To defendant of a lesser- charge, arguably which would have included alternative sentence, death is not constitu affected the deliberation tionally permissible. supplemental in do not by the State its brief

The cases cited Jersey may be proposition that a New for the stand felony of an unindicted that was death on the basis sentenced to submitting the guilt its verdict part of not found as without Since, jury. as we have felony-murder issue to the non-capital — U.S.-, Arizona, supra, S.Ct. in v. seen Schad jurisdictions felony murder is a death- in some 115 L.Ed.2d murder, first-degree there is no form of eligible alternative felony separate verdict on reason to submit (when of mur- statutory context both forms In that murder. murder, death-eligible), are der, intentional murder sentencing independent as an factor serves aggravating as, jury just sentencing guide for consideration type of factor factor would. That example, prior guilt phase of a trial. in the not established need be intend, nor does constitu- Legislature did Obviously, our under every aggravating factor require, that principle tional death-eligible a murder be that renders 2C:ll-3c N.J.S.A. For exam- guilt-phase verdict. indictment and a subject of an detection, c(4)(f), killing escape although factors ple, officer, separate can constitute c(4)(h), killing police factor nor of offenses, law principles of constitutional neither criminal sepa- be tried as require that the factors fairness fundamental proper If notice guilt phase. in the offenses rate indictable its unani- jury could make sentencing-phase given, the were guilty verdict and prior finding a factor without of such mous trial. unfairness in the without notes, post at true, concurring member as our it is While factor has not aggravating an if notice of 2d at 194 that 601 A. trial, may not that factor before given to a defendant been trial, it in that same a death sentence the basis for provide a freeze-frame not as death-eligibility functions true that also established, moving picture. Once rather as a snapshot but of a death sen the basis might factor form aggravating given. were proper if notice proceeding in tence a later III). (1988) (Biegenwald 542 A .2d Biegenwald, encompassed by the separate offense But when itself, is, alternative form a basis for an factor aggravating constitutionally a defendant is non-capital, that is of murder offered for deliberation alternative to have that entitled right to defendant was denied the Because guilt phase. possible [capital and “all of the offenses jury decide have the evidence, reasonably found” in the might be non-capital] that 188, 62, Ramseur, at 271 n. 524 A. 2d supra, 106 N.J. v. State of death. the sentence we vacate

Ill felony-murder renders on the issue our decision Because appeal, in we other issues raised defendant’s many of the moot detail, they except to the extent that them not address shall validity any proceedings or affect may further recur remain. the verdicts jury? impartial fair and by tried a

A. Was defendant challenges to the selection raises various Defendant applied an incorrect the trial court jury. He asserts that of his jurors. Those issues death-qualification of the in the standard been discussed disposition our and have have mooted been 1, Biegenwald, 126 N.J. extensively by v. this Court. See State Dixon, IV); 125 (1991) v. N.J. (Biegenwald 172 State 594 A.2d 393, Williams, 113 550 223, (1991); v. N.J. 593 A. 2d 266 State II). is re (1988) (Williams No further discussion A.2d 1172 of an unsworn that the use quired. are satisfied as well We selecting jurors preliminary basis jury questionnaire as v. procedures. See State jury-selection our does not violate (1991)(discussing 454, use of Moore, 420, 864 122 585 A.2d N.J. and examined jurors sworn Each of the questionnaire). question forth in the respect of the answers set under oath in in an care to assure A court should take naire. trial his or her statements dire, juror affirms that voir individual argues that Finally, defendant questionnaire are true. on the

535 jurors concerning question potential court’s failure the trial plain against defendant constituted prejudice possible racial an Yet, suggested that this crime was of one has error. no 554, 523, nature,” McDougald, v. 120 N.J. “interracial State that racial (1990), nothing in the record indicates 2d 419 A. “ ‘inextricably up with the conduct of bound issues were ” 246, Ramseur, A. 2d supra, 106 v. trial.’ 1017, Ross, 96 S.Ct. (quoting U.S. Ristaino circumstances, (1976)). those Under 47 L.Ed.2d adequate. on racial bias was that the voir dire we find of counsel denied the effective assistance B. Was defendant attorney previously represented a his trial had because State’s witness? The law firm raised before trial.

The stated issue was represented previously had James trial counsel of defendant’s case, drug witness in this Berry, who was a State’s interests argues that the firm’s Defendant because offense. cross-examining sharply prohibit lawyer his from would client, would mate trial counsel’s interest be former firm’s began, trial Before the rially adverse to those of defendant. potential conflict. prosecutor informed the court courtroom. He subsequently brought into the was Defendant attorney’s prior firm’s his that he was aware of then stated attorney’s he consented to Berry, representation representation. continued Nothing in the highly speculative. argument

Defendant’s serv- prevented from defense counsel was suggests record interests. See partisan” of defendant’s ing “vigorous as a 541, (1980). Berry’s 531, Bellucci, 410 A.2d State v. N.J. There is no case. wholly unrelated to defendant’s case was choose between was forced to that defense counsel indication duty to compromising his betraying Berry’s confidences or uninhibitedly. Berry fully and cross-examining by Berry cross-examining from prevented was not Defense counsel cross-examination his fully appears and he to have conducted Moreover, ably. open court to counsel’s defendant consented representation. Defendant now claims that his con- continued him at moment and was neither sent was thrust on the last However, appears voluntary. defendant’s consent knowing nor record, suggestion there is no that he was coerced or on the consenting. deceived into counsel defendant denied the effective assistance of

C. Was subpoena key a attorney’s his failure to issue concerning to re- the victim’s whereabouts or witness appear failed to quest a continuance when witness for trial? cases, set capital

ín a recent series of we have forth determining capital defendant has standards for whether phases of a the effective assistance of counsel at both received 538-39, 585 A. 2d 916 Oglesby, trial. N.J. See (1991)(Handler, J., “Capital guar concurring). defendants are Davis, competent anteed counsel.” State v. N.J. (1989). prevail In order to on a claim of 561 A.2d 1082 counsel, a defendant must show that ineffective assistance of attorney’s performance was “so deficient as to create deficiency materially contrib probability reasonable that [that] * * Fritz, v. 105 N.J. uted to defendant’s conviction State (1987). 42, 58, strategy Matters of or trial tactics 519 A. 2d 336 they are based on a always are almost unassailable when understanding and evaluation of all the facts proper law 1, 165, Marshall, 123 586 A. 2d 85 in a case. (1991). case, the murder

In this one of the critical issues when witness, Gary potential that a occurred. Defendant asserts alive, Inn, Maple Lake placed the at the Bey, would have victim August Defense coun- p.m. 11:00 1988. sometime after witness, Ellison, he who testified that presented sel one Arthur Bey Maple Lake Inn talking with at the had seen the victim evening, specify he did not the time. It some time that but shortly obviously Talley had been killed before critical whether fight backyard or August 26 in a in defendant’s p.m. 9:00 and, he, fact, evening had still been alive later that whether therefore, by opening else. In his state- was killed someone ment, produce two defense counsel said that he intended to the Inn at place would the victim alive at witnesses who midnight. Following testimony, Ellison’s which was far from definitive, counsel asked the court for a few minutes to defense him Bey Bey was available. had assured that find out whether day, appear, but he did not. Later that defense he would Gary Bey that until put counsel on the “we did wait record 11:30,” rested his case. and then at question request is whether to fail to a continuance subpoena the witness or to fail to have that time order production a warrant for the of the witness previously issued argues assistance of counsel. Defendant was ineffective subpoena Gary Bey or to seek a continuance counsel’s failure to subpoena considering all the to serve a was not “reasonable 668, 688, Washington, v. circumstances.” Strickland U.S. (1984). 2052, 2065, 80 We are 104 S.Ct. L.Ed.2d unable, however, are fully to evaluate the claim because we production to ascertain what effect the of the witness unable suggests Bey had on this case. Defendant would have theory, that is not have corroborated his but of course would any insufficient to determine whether known. The record is foregoing prejudice ensued from the circumstance. See State 259-62, (discussion Dixon, supra, 125 593 A. 2d 266 of coun hearing requirement in claims of ineffective assistance sel). his deprive defendant of prosecutor’s

D. Did the comments right to a fair trial? by prosecutor that comments made

Defendant contends right Specifi- trial. during proceedings violated his to a fair prosecutor improperly acted cally, defendant asserts that the imply- disparaged” defense counsel when he “criticized and joined had with defendant and his ing that defense counsel 538

witnesses and story, fabricated a he described defendant as being “despicable” involving case, for his children in the he told acquit the that in order to defendant it must believe that lied, all of the State’s witnesses had and he referred to defen- dant’s failure to take the stand.

We have had to reverse sentences when the State has exceeded the bounds of fairness in prosecuting capital cases. See, Rose, e.g., 454, 112 508-24, N.J. 548 .2dA 1058 (1988). Obviously, prosecutor may “vigorous make a and presentation forceful Bucanis, the State’s case.” State v. 45, 56, 739, denied, N.J. 138 A.2d cert. 357 U.S. 78 S.Ct. (1958). 2 L.Ed.2d 1160 alleged each of the instances of prosecutor, misconduct attributed to this his comments were reasonably related scope jury. evidence before the time,

Over the defense significant witnesses made changes in their prosecutor versions the events. The was free to comment that “chang[ed] witnesses had their versions degrees, whatever, significant about events hap case,” pened in this and it was not unreasonable for the prosecutor suggest to that the conflicting numerous and contra dictory given by family accounts members were motivated by an attempt to assist defendant. That could have been achieved, however, prosecutor without vouching person his opinion al falsity on the truth or any testimony of defendant Rose, 518-19, or his supra, witnesses. See 112N.J. at 548 A .2d 1058. argues prosecutor Defendant accusing that the trial being counsel of principal plot in the to deceive the when prosecutor closing argument, said in his “defense was obviously by prior hurt testimony prior Dia’s statements they up have to come way try explain with some * * * away. they well, But up story, you now come with this know, I was mad. I was Braynard.” mad at Even if that counsel, statement could be read to refer to defense it is much oblique support too prosecutor defendant’s claim that the “improperly disparaged criticized and defense counsel.” In that defense contrast, explicitly said prosecutor Rose lawyers, as to what explained the law “were witnesses with, he faced and how he could beat being charged what he’s provides for him.” penalty that the law A .2d 1058. “despicable” involving as

By referring to defendant matter, made at least a prosecutor his children in the had involved his children suggestion that defendant tangential the crime. The himself from attempt in his to disassociate “despicable” word is under argues use of the State that the case, of this that the in the context standable when viewed once, prosecutor’s that the rest of the only and word was used of the evidence. We to a fair review summation was devoted reference, prosecutor added: Immediately after the agree. that,” proceeding to detail the evidence explain let me “[a]nd the children. Given the suggests improper an influence on context, inflam prosecutor’s remark was less fact-specific Marshall, supra, matory than the remark made 85, was not 2d which the Court found at 586 A. N.J. reversible error. would have respect to the comment that

With liars, agree with the to be we find all of the State’s witnesses to response made in to defense that comment was State that veracity of the State’s wit repeated attacks on the counsel’s Thus, Jeffrey Davis. nesses, and particularly Marie Simmons case, did not constitute this the comment in the context of misconduct. he instances in which points to three

Finally, defendant his fail remarked on prosecutor improperly contends that the referred to prosecutor testify. In one comment ure to was found at explain how his sweatshirt failure to defendant’s house, comments the in the other two Marie Simmons’s of defendant the various statements prosecutor referred to not a direct the sweatshirt was family. The comment on his least testify, was at but defendant’s failure comment on partially response to defense during counsel’s assertion summation that Simmons had lied when she testified that defendant had come to her house Friday night. The two other comments appropriate were in the circumstances of this case. short, there is no prosecutor indication that the sought to advantage take of defendant’s failure testify in this case.

Prosecuting attorneys are afforded considerable lee limits, way, within in making II, their summations. Williams supra, atN.J. 550 A.2d 1172. “The determination of prosecutorial whether misconduct denied right defendant the a fair trial must take into account the tenor of the trial and the degree responsiveness of both counsel and the court to improprieties.” Marshall, supra, 123 N.J. at 2d 85. complained A. The remarks during of came prosecu summation, tor’s and defense counsel object did not to them. Although some of may the remarks approached have the limits permissible advocacy part prosecutor, on the of a none of the egregious remarks was “so deprived that it defendant of a fair Ramseur, trial.” supra, 524 A. 2d 188. E. charged Was it error not to passion/provocation have

manslaughter?

Although charged the trial court with the lesser-included aggravated offenses of manslaughter and reck manslaughter, less provide the court did not charge a on passion/provocation. argues Defendant that the record tells story “drug gone sour,” of a deal and that of a “[e]vidence fight was all over this record.” If the record warrants a passion/provocation manslaughter charge, the defendant is en instruction, titled to such an manslaughter whether or not consistent theory with the of Powell, the defense. 84 305, 317, (1980). However, N.J. 419 A.2d 406 we have not required the meticulously trial court to through sift the entire record in every murder trial to determine if some combination of facts might and circumstances rationally sustain a man-

541 charge. provide trial that slaughter duty court “ ” ‘clearly indicate’ charge only arises when the facts Choice, charge. supra, of v. N.J. appropriateness that State Powell, (quoting supra, 2d v. at at 486 A. 833 State N.J. 406). 318, 419 A. 2d that defendant contends

Despite lengthy list of evidence only charge, provides the record supports passion/provocation might suggest that that victim fragments a few of evidence (1) in Dia fight engaged mutual combat: Shaw’s started the guys jumping are police dispatcher that “two statement dad”; (2) custody request police while in to be my defendant’s self-defense; (3) testimony provided explanation an of with However, scratches and bruises. there concerning defendant's subsequent skeptically. that evidence Dia’s are reasons to view only yard, in the one of spoke fighting two men statements defendant, of those acknowledged to be two whom she statements, testimony, including given during her trial one other man to the she saw defendant throw the she said that top request him. to be ground and fall on Defendant’s self-serving. provided explanation an of self-defense compared to fifteen stab and bruises when Several scratches suggest mutual combat. do not wounds Mauricio, v. 117 N.J. This is far from case charge failure to (1990), in we held that the 2d 879 which A. request of the constituted passion/provocation at the defendant contained evidence The record Mauricio reversible error. victim, the had killing his been shortly before Id. unfairly physical violent confrontations.” subjected to “two This is also far from State A.2d 879. case Powell, we held Powell, 419 .2d406. A supra, charged passion/provocation should have the trial court easily jury could have conclud the evidence “the from because provoked quarrel in which Powell was occurred ed that lovers’ attempt life, deprived him attempt his which victim’s] [his senses, rage.” in fit of Id. at him to kill her his and caused 323, 419 A .2d 406.

This case is closer to those cases in which we held that the defendant was not entitled to a passion/provocation charge. Even in Perry, supra, 128, State v. 624, 590 A .2d victim, where there was evidence that the angered dispute in a drug money, spoke over harshly defendant, walked him, pointed toward at him while trying the defendant was inject drugs, himself with we held that that “provid evidence ed no passion/provocation basis for a manslaughter charge.” 160, Id. at 590 .2d 624. A Further evidence showed that once started, fighting the victim defendant, “broke on” the so that the defendant believed the choice “was either me or him.” 141, Id. at 590 A. 2d 624. In Oglesby, supra, 122 N.J. 536, 916, at 585 A.2d in which there was controverted evidence that the victim had struck her, the defendant before he killed this Court held that the trial court did not err in not charging passion/provocation manslaughter.

As in Perry and Oglesby, the clearly record here did not indicate the need passion/provocation for a charge. Even light viewed in the positive defendant, most that evidence clearly does not appropriateness indicate the of a passion/prov- charge. ocation

F. Does charge felony failure to grounds constitute

for reversal of the murder conviction? Alabama, Beck v. 447 U.S. 100 S.Ct. (1980), L.Ed.2d Supreme recognized Court charg ing jury on lesser-included offenses can be beneficial to the defendant because “it affords the a less drastic alternative than the choice between conviction of charged the offense acquittal.” Id. at S.Ct. 65 L.Ed.2d at 400. argues Defendant charged because the jury only court on the lesser-homicide offenses of aggravated murder and manslaughter, reckless charges defendant now asserts were “virtually present irrelevant to the case since there was abso lutely no evidence that Talley Lawrence had been killed reck lessly,” acquitting faced with defendant of all convicting capital him As the State of murder. charges or notes, exaggerated is a view because somewhat murder, non-capital charged serious-bodily-injury on was also Gerald, offense, provided by supra, v. as State addition, objected to 2d had the A. 792. defense counsel statement, drugs reference, opening money its State’s body the the had missing Talley’s from on basis that indictment charged theft. error, charge have been To reversible the failure must be unjust Defen capable bringing about an result. R. 2:10-2. felony-murder given the charge dant that a would have asserts non-capital murder. option convicting defendant of a the basis, on that have vacated the death sentence Because we case, is, posture prejudicial no present in the other there Dixon, supra, 125 prior to a retrial. See State v. effect (“Because sentence for N.J. at 593 A. 2d knowing purposeful as the or murder is same sentence imposed, is no penalty death is not there murder where the case”). If in the circumstances of this prejudice to defendant death, the conviction of seeks a sentence of count retried. vacated and the murder See State must be (1990) (discussion 439, 504-05, 575 A.2d 435 Long, 119 N.J. re concerning partial criminal reversal whether effect of requires any other capital-murder count reversal of versal of retrial). prior count related dilute the charge jury impermissibly to the

G. Did guilt prove defendant’s on all counts burden to State’s beyond reasonable doubt? charge court’s re contends that trial

Defendant guilt beyond a prosecution’s obligation to establish garding the error. improper and constitutes reversible doubt was reasonable us since defense plain as error before point is raised charge He on the at trial. focuses object did not counsel doubt, cautioned the which court’s definition of reasonable skeptical minds with jurors against viewing the evidence State’s “ignoring” or interpretation an of the evidence might favor the State searching for doubt instead of the truth. Defen- argues dant charge degree that the inflated the of doubt that qualify reasonable, would suggesting as jurors that the must skeptical be more than about the State’s case. In the defense view, charge narrowed the circumstances that would have entitled defendant to have the benefit of a reasonable doubt and placed inferences guilt equal consistent with footing an inferences consistent with innocence. abstract,

Taken in the challenged portions the charge of the may tendency. However, have that repeatedly we have stated “ ‘portions that' charge alleged of a to be erroneous cannot be dealt with in charge isolation but the should be examined as a ” whole to determine its overall Marshall, effect.’ State v. supra, 135, 123 atN.J. 586 A .2d (quoting 85 Wilbely, State v. 420, 422, (1973)). 307 A.2d 608 Our review of the charge jury court’s to the convinces us that its overwhelming tenor convey was to jury that the State the bore burden proof beyond of a reasonable doubt on each every element of the case. telling jurors truth,”

While court, “to search for the the sentence, the same give told them “to the defendant the benefit doubt, of a mind, reasonable if it in your arises you after have considered all of the evidence in the addition, case.” In the correctly court charged jury presumption the on the of inno cence and on proof. the State’s Furthermore, burden of proving State’s burden of each element of each beyond offense a reasonable doubt was qualification restated without in the separate context of the concerning instructions the various charges indictment, in the so that concept of the State’s “[t]he prove guilt burden to beyond permeates reasonable doubt trial jury charge.” court’s Marshall, State v. supra, 123 N.J. 136, at 586 A.2d 85.

Nonetheless, repeat we the admonition that we ex pressed in Biegenwald, 106 N.J. 524 A .2d 130 against any using our (1987), cautioned trial courts which we “ ” “ tendency to ‘understate’ or ‘trivialize charge has whether the defendant’s duty to determine awesome ” beyond a reasonable doubt.’ Id. guilt proved Ferreira, 373 Mass. (quoting Commonwealth A. 2d (1977)). suggests Any instruction that 364 N.E.2d simple concept is a search for of reasonable doubt that the detracting of from the seriousness run the risk both may truth proof. of Because the and the State’s burden of the decision unique required to convict is to the criminal degree certainty of any language that tends to law, discourage the resort to we of reasonable doubt indispensable nature minimize the standard. statement of the that the trial court’s clear

We are satisfied repeated emphasis on presumption of innocence and its respect to proof on the State with each continuing burden of apprised charges fully accurately the individual proof beyond a doubt. Read reasonable the State’s burden charge entirety, challenged portions of the do in their the convictions. grounds for reversal of constitute IV that we have con- only briefly to other issues We advert The intro- disposed further discussion. of without sidered and decomposed body of photographs of into evidence duction There of the trial court. the discretion the victim was within hindering- jury to the the sufficient to submit evidence charge jury to the trial court’s apprehension charge. The unneces- doubt did not concerning the of reasonable definition deprive defendant of proof of sarily the burden dilute State’s process of due law. charged, we do not errors sentencing-phase of respect

In should prosecutor to that the except those note address for courage” to vote “have the appealed jurors to to have 1058 Rose, 548 A. 2d supra, 112 N.J. at death. See State (prosecutor jury should not divert “from duty its determine punishment defendant’s based on the evidence and accord charge”). the ance with trial court’s court The trial should explain carefully mitigating Bey, the factors. 123, 169, II). (1988)(Bey 548 A. 2d 887 did court not err in sequester failing jury during penalty-phase its delibera disposition tions. it unnecessary Our makes to undertake the proportionality requested by review defendant under N.J.S.A. We any 2C:ll-3e. have considered whether departure should prior rulings be made from our on the constitutionality of the penalty Jersey death New have concluded that no departure is warranted. The in denying trial court did not err post-trial questioning jurors. defendant’s motion for

V up, To sum defendant has been found guilty murder. may not having jury Defendant be sentenced to death without make the choice between all available verdicts of case, non-capital murder. this the State affirmed that the felony. Despite murder had been committed in the course of a State, that affirmance was not allowed to non-capital deliberate on verdict of murder. There is question no for a substitute verdict on this essential death-eligibility. The death sentence must be vacated because right. the State did not afford the defendant this fair-trial explain why society To reasons a free elect should rights reprehensible afford seemingly fair-trial to even the most of its members remains difficult. Justice Frankfurter once triumphs wrote that impulses when natural aroused “[l]aw by shocking yield safeguards crime our which civiliza- tion justice has evolved for an administration of criminal Indiana, once rational and effective.” Watts v. U.S. 1347, 1350, (1949). 93 L.Ed. S.Ct. That may enough regard society answer not be those who as the safeguards loser these produce unpalatable when results. Per- laws, system experience unjust of an of as only haps it is world, parts of the that will nurture in other has occurred respect for law. respect death-eligibility, the convictions of

Except with affirmed and the matter and other counts are otherwise murder proceedings in accordance to the Law Division for remanded opinion. with this J., dissenting part.

HANDLER, concurring part case, capital-murder Braynard Purnell received In this occurred in the murder he committed death sentence because question, recognized by as robbery. The central the course of a Court, imposed on that a death sentence can be is whether to determine whether defendant ground when the failed felony agree I crime of murder. guilty of the substantive imposed under such that a death sentence with the Court defective,” 523, ante at “constitutionally circumstances capital defendant’s conviction for at and that A.2d However, I must reversed. and his death sentence be intact defendant’s disagree the Court’s decision to leave I that a non-capital murder. believe conviction for ultimately the existence of that relies prosecution withholds from for the death sentence but murder as a basis guilt criminal of the defendant’s jury the determination flawed, and, in fundamentally this crime is that substantive I murder conviction. ease, of the defendant’s warrants reversal step. refusal to take that from the Court’s dissent appeal that it has notes other issues on The Court also discussion,” ante “disposed of without further considered light its resolution moot in 2d at or found at 601 A. of the death sentence. felony-murder issue and vacation some of those issues my at 182. In view Ante 601 A.2d defendant’s death validity only weightily on the bear well, and merit further murder conviction as but of his sentence continuing my belief Additionally, I reiterate treatment. capital-murder statute enacted, remains unconstitutional as interpreted, applied. E.g., Marshall, 123 N.J. (Handler, J., 586 A. 2d 85 dissenting).

I theory The capital-murder State’s of the against case defen- dant was that he Talley killed Lawrence robbing while him of Indeed, cocaine. unwavering State was position. in that trial, Prior to the State served defendant with a notice of aggravating factors. addition to specifying prior factor, aggravating conviction as an the State indicated that it intended to seek the penalty death for the murder based on aggravating factor 2C:ll-3c(4)(g), N.J.S.A. specifically, that offense was committed while the engaged defendant was “[t]he of, in the commission attempt, flight or or committing after attempting to robbery____” commit ... prosecutor The in his opening guilt statement at the phase of jury the trial told the gone that defendant backyard had into his Talley with in order “to obtain cocaine from” prosecutor him. The noted that “apparently the quite defendant did enough not have money for what Talley Lawrence charge wanted to him for this cocaine” and that “it seemed this defendant going get was this cocaine no matter prosecutor what.” The also told jury: [Talley] “He any quantity didn’t have of cocaine body. on his I submit it was removed from him the defendant and used night. later on that He any didn’t have cash on [the victim] They just him. quarter found a body____” underneath his During guilt-phase summation, his prosecutor stated that Talley had carrying been approximately two “sixteenths” of cocaine evening August on the about the same amount that defendant took to Marie Simmons’s home night, later that emphasized sixteenths of an ounce of cocaine is “[t]wo something you air, pull out of the gentlemen.” ladies and position That was reiterated in penalty phase of the trial. prosecutor told the that he would let it decide “wheth- er this Talley’s defendant took drugs Lawrence when he killed him,” opinion supporting in his the evidence both but that crystal aggravating “absolutely clear.” Consistent factors gave position, the State’s the trial court sentenc- robbery in ing determining instructions for the occurrence of c(4)(g) support “you've factor. The trial court stressed: robbery heard elements what and the State has beyond reasonable that the murder was prove doubt commit- engaged attempt- while Purnell was in the commission of or ted ing robbery as defined to commit I have it.”

Thus, theory although the State’s was that defendant had Talley robbery, course it relied on killed in the of a and sentence, obtaining in a death was never factor robbery, jury given opportu- for was never the indicted the criminally nity guilty to determine whether defendant was of robbery. According on robbery felony or murder based either explanation jury, the trial court’s to the “the law does not alleging robbery aggravating an prevent the from as State just they not include it as a Count in the factor because did Court, view, correctly rejects in my Indictment.” The the trial position. court’s points very aptly out the State’s failure Court predicate for the here does not obviate

indict defendant felony murder obligation trial to submit the to the the court’s guilt during guilt jury for a determination of substantive the 532-533, 534, 182, the Ante at 601 A. 2d at 187. phase of trial. (acknowl 223, (1991) Dixon, v. 593 A.2d 266 See State N.J. charge jury “concerning edging duty of trial courts to the ‘clearly offense indicated’ the evidence” any version of the 148, Grunow, 506 A.2d 708 (quoting v. 102 N.J. State lesser-included, (1986)). duty imperative when the or That murder, alternative, non-capital is a form of such as offense charge non-capital offenses The failure to such felony murder. inevitably to the risk of an unwarranted “would seem enhance in risk be tolerated a case which conviction. Such a cannot Alabama, is at Beck 447 U.S. the defendant’s life stake.” v. 2382, 2389, (1980). 625, 637, 65 L.Ed.2d S.Ct. context, properly rejects the this the Court also State’s addition- argument al that there no reversible error another was because murder, murder, non-capital serious-bodily-injury form of jury jury still submitted convicted defendant of capital murder. The of a different form of non- submission murder, jury rejected, which the did not the need obviate felony murder in this case. no to submit Where one witnessed homicide, so that the exact circumstances homicide unclear, jury presented complete remain should be with the range non-capital supported by crimes the evidence in order guilt. it to make a fair determination of to enable defendant’s Hunt, (1989)(Handler, 558 A.2d 1259 J., (the dissenting) “deprived should not full be spectrum weighty of choices on which to base its determination liability, denying opportunity of criminal the defendant the offense”). secure a conviction a less serious require guilt phase The failure to in the of the trial guilt to consider defendant’s substantive of the crime constitut- ing felony profound murder created another flaw this case. defendant, jury, sentencing Because the when had not been given opportunity the antecedent to consider the substantive determining crime the traditional framework for within criminal innocence, guilt guilt it could determine the defendant’s underlying felony only the at the same time that it determined That, submit, contrary teachings his I is sentence. of 238, 309-10, 2726, Georgia, Furman v. 408 92 2762- U.S. S.Ct. (1972) (Stewart, J., concurring); 33 L.Ed.2d 390 id. at 310-12, 2762-64, (White, J., 92 33 S.Ct. at L.Ed.2d at 390-91 concurring) 189-92, Gregg Georgia, and v. 428 96 U.S. 2909, 2932-34, (1976). 883-85 S.Ct. L.Ed.2d Assessing guilt assessing punishment require very two thinking jury. types distinct of the The determination of the guilty a the commission of a crime that constitutes verdict is contrast, jury. decision of the the determination of ultimate only sentencing the commission of a crime that is a factor is not jury the ultimate decision that the must make—that decision is the capital whether defendant lives dies. In the sentencing context, jury when the determines that the defendant has “offense,” committed an only that determination is one factor among many simultaneously to be weighed decided and in fixing Hence, an jury’s finding ultimate sentence. the of the c(4)(g) aggravating factor based on the of commission an of- regarded qualitatively fense cannot equivalent be as to a final verdict that criminally guilty the defendant is of that offense. jury

The failure to have the a on felony render verdict generated murder form another of unfairness to defendant. By exposed that failure trial to penalty court the death a candidacy defendant whose for the death sentence had been previously determined with of protections all the constitutional must process. prosecution that surround that Because the permitted prove felony in sentencing phase rather guilt phase, than the it proof was able to bolster its robbery normally prove evidence not admissible to criminal evidence, guilt, murder, such as character prior evidence a and, importantly, most jury just the fact that the had convicted defendant of intentional murder. might argue prove that

One the State must more order to felony sentencing prove a as establish factor than to felony murder, felony as an element of the substantive crime of capital requires proof of intent to kill and requirements proof murder does not. Technical or formal aside, jury felony only called to find a as a sentencing already factor does so it has after concluded that the defendant has committed an intentional murder is death itself, eligible. finding, by Such a is bound to make the felony. inclined more to believe that defendant committed Simon, 191, 201, (1979) See A .2d (jury relating permitted guilt that is first a factor to determine may prone guilty be defendant is substan determine that crimes). Consequently, unquestionably tive greater procedural protection has if determine must felony as a crime guilty of the substantive he or she is

whether capital sentencing deliberations. it commences before than grave capital-murder prosecution in more No defect is of criminal jury’s blurs the determination merges and one procedure A death sentence. imposition of the guilt with its part single determine as a that calls on criminally guilty defendant is process both that the decisional unconsti- unprincipled to die is and he or she deserves and that capi- generally in our current potential inheres That tutional. believe, because, I statute tal-murder aggravating which jury’s factors serves both to specify consideration of death-eligible] in the and, murderers who are are in the class defendants [of aggravating factors act as their to decide punishment. same process, in elements of the offense form, effect, of the class; they specifications come within the class. must have committed to defendants ‡******* determining among Aggravating who the class of are used in circumstances death-eligible. the elements In this these factors define sense, murderers is all factfinding is to determine if the murder murder. The necessary of capital capital guilt sentencing moreover, in the rather than phase; murder occurs factfinding to be to determine if the murder is is necessary

the identical death. considers in the same Thus, process punishable by it also must aggravating murder, if the murder factors to determine capital aggravating if the sentence is death. factors to determine use the Ramseur, supra, (Handler, 106 N.J. at [State J., 524 A.2d (citation omitted).] dissenting) sentencing determinations are guilt point If the —that capital-murder method under our sufficiently separated debatable, in majority opinion fairly as the ology otherwise —is hardly 192-95, it is 398 A. 2d suggested, id. Ramseur Here, guilt determinations of only case. this debatable felony murder of a respect to the commission impose the death of the decision made as elements were sentence. the trial prejudice arises whenever aspect of

An additional jury’s determination of splinter allows the State court jury in a case when the activity, as it does criminal independently of different crimes the occurrences considers 553 guilt phases penalty the and trial. practice of the Such a denies the the opportunity jury defendant to have the the evaluate culpability overall level of his or her all stemming from related together. jury acts taken A of guilt sup verdict criminal posed an express judgment ultimate culpability of that encompasses evidence, the consideration of the the determina facts, tion of and application legal principles basic of guide define the jury special substantive crime and in its responsibility determining guilt. for E.g., criminal State v. 204, (1981). Ingenito, recognized 87 432 A.2d 912 N.J. We have jury’s may that the criminal expression verdict be an of con science, 212, 912; Dunne, e.g., at 432 see 124 id. A.2d State v. 303, 319, (1991),through jury A.2d 1144 may N.J. 590 which the lenity exercise and find a spite defendant innocent evi beyond dence guilt that establishes criminal a doubt. reasonable 212, E.g., Ingenito, supra, at State v. 87 N.J. 432 A.2d 912. sentencing Criminal profound responsibility involves as expression guilt of conscience as determination of criminal or Indeed, jury’s sentencing responsibility innocence. in a capital-murder responsibili case is even more awesome than its ty determining mean, guilt. for criminal That does not how ever, deprived right that the can tried be to be for all or her at of his criminal acts once. Each kind of judgment jury judgment by the reflects a final that is some thing parts. the sum constituent more than of its State v. Simon, 79 at 2d supra, N.J. 398 A. 861. appreciate types jury

Courts that neither these two solely by can explained determinations be reference to the separate bring jury to its factors ultimate conclusion. separate These their determinations can transcend elements. Thus, verdicts, respect with to criminal courts do not insist on rigid among logical consistency having or verdicts common supra, elements. at E.g., Ingenito, N.J. proceed permit jury’s

A.2d 912. do courts verdict in one Nor ing adopted use in to be substituted another. Id. jury 432 A.2d Because never be sure how a 912. courts can decisional factor into an ultimate determina may transform a guilt, making do not excuse a from an tion of courts finding respect each essential element that independent undisputed. when that element is part is a of its verdict even Collier, (1982). .2d 168 Most E.g., v. 90 N.J. A all of the especially, in a case reconsiders vantage point deciding when on a sen evidence from a fresh tence, may disregard prior factual determinations during guilt phase of the trial. reached See State 13, 72, (1987)(when capital 524 A .2d130 Biegenwald, sentencing, purposes trial for the of defendant receives new assured, trial, the new of the ‘benefits’ “neither side is at trial.”). original jury may satisfy its gained in the The obligation determine whether defendant has committed a aggravating capital- for felony as an element of an factor adopting sentencing purposes simply by its antecedent determi guilt. nation of criminal case, implicitly acknowledged that the

In this the trial court sentencing an offense as a factor finding of the commission of ultimate determination as that of is not the same kind of instructions, indeed, may guilt, by its have trivial- criminal responsibility respect with to deter- jury’s ized the decisional robbery sentencing mining defendant committed a as a whether factor, viz: little about what can determine from have to know is so you robbery [Y]ou guilt during and now, that heard the entire trial, phase

all the evidence you aggravating factor has been State beyond whether or not that proven by added) (Emphasis reasonable doubt. charge defendant for the failure to indict or otherwise a form of predicate felony c(4)(g) constitutes underlying capital prosecution, under undercharging. In the context of a for punished a crime charging allows the defendant be guilt of his or her jury determination without a formalized Indeed, charge predicate crime. the failure to indict that opportunity to secure an deprives the defendant of the felony Mitchell, People 64 A.D.2d acquittal of that crime. v. See (1978) (defendant’s 408 N.Y.S.2d felony conviction for murder reversed because jury, finding guilty while murder, felony acquitted had him of the underlying felony); Dixon, supra, see also at A. 2d 266 (defendant acquitted robbery subjected could not be aggravating c(4)(g) robbery). factor based on concluding While in this case that defendant should have charged murder, felony Court, nevertheless, been suggests in dictum that under other circumstances offenses that are both substantive aggravat- crimes and elements of an ing factor need not subject be the of an charged indictment or or submitted to the for a determination of liability. criminal It observes: Legislature our did not nor Obviously, intend, does constitutional principle aggravating N.J.S.A. 2C:ll-3c that renders a factor under require, every death-eligible subject guilt-phase be the of an indictment and a verdict. although c(4)(f), killing For factors example, and factor escape detection, c(4)(h), killing a can officer, constitute criminal police neither separate offenses, of constitutional law nor of fundamental fairness

principles require guilt factors be tried as indictable offenses in the separate If phase. proper given, sentencing-phase finding notice were could make its unanimous guilty of such a factor without a verdict and without prior unfairness trial. at [Ante A.2d 182.] expresses possible

The Court concern about unfairness to a might defendant that predicate result if the offense or required charged were to be as a substantive crime. That Dixon, concern was also mentioned in supra, State v. 125 N.J. 264, at predicate felony 593 A. 2d 266. There the felony and murder, specifically, robbery felony and murder in the course robbery, charged, jury of were in fact and acquitted the the deliberations, charges. During defendant of those jury the had they guilty felony asked whether could find the defendant of murder felony robbery. based on a other than The trial court responded had robbery only felony you that is “the that address your attentions rejected argu to.” The Court the defendant’s appeal ment on that when there is some evidence of a sexual victim, guilt phase attack on the the trial court the of the 556 charge felony predicated attempted murder

trial should requested the has penetration, even when defendant not sexual 256, explained: 506 A .2d The Court charge. such a Id. 708. like the in a case in which defendant did not this, with trouble [T]he analysis charge, the is that it court in an impossible such a puts position. request charged sexual or sexual Defendant not penetration attempted jury if the had convicted defendant of intentional What penetration. a of death on sexual and then had sentence an attempted penetration, premised aggravating We could that if the court on viewed as an factor? well envision and the had not its own motion had submitted this only but a death sentence on what it, found sexual penetration predicated attempted it to review on a troublesome issue would be appeal. [Ibid.] posed hypothetical I the Court in Dixon submit that If not repeated and in this case cannot arise. the State has ag particular in its of previously specified the offense notice gravating predicate felony, may rely as a it on that factors evidentiary support penalty regardless of the offense to death support underlying the defendant has a constitu offense. tionally-founded right served in advance of trial with to be challenge those factors. aggravating notice of factors 195-96, 191, Matulewicz, 115 557 A .2d 1001 State v. N.J. See (1989); 132, (1984). 97 478 A .2d 339 McCrary, v. N.J. State as a matter of constitutional due The defendant’s entitlement charge non-capital on a process fairness and fundamental relinquish his or her form of murder cannot be conditioned on right to be with a notice of ment served waiver aggravating governs factors whether the death sentence scope may sought be determines and limits sentencing-phase the trial. Jersey’s mere in all of New

It not a coincidence that previous capital-murder cases which the State submitted factor, c(4)(g) had been indicted and convicted Moore, 420, 122 underlying felony. See State v. N.J. .2d (1991); McDougald, 120 N.J. 577 A A .2d 864 State v. (1990); v. 577 A .2d 99 Hightower, 120 N.J. State ; (1990); (1990) 575 A .2d Pennington, v. 119 N.J. State Gerald, (1988); Bey 549 A .2d II, (1988); I, N.J. 548 A.2d 887 Bey (1988). 548 A.2d 846 These decisions reflect the under- standing that if support evidence is sufficient aggravat- ing c(4)(g), factor it must be sufficient to support and warrant an indictment for the felony substantive that constitutes the aggravating basis for that factor. noted,

As earlier the Court determined that consequence charge of the failure to felony defendant with murder in the guilt phase of the trial is that defendant’s death sentence must be vacated and his conviction capital for murder reversed. 532-533, Ante at 601 A.2d at 181-182. I would set aside the non-capital conviction for murder as well. explains “[bjecause

The Court we have vacated the is, death sentence in present posture case, ... there prejudicial prior no other effect to a retrial.” Ante at Only 601 A. 2d at 187. the State seeks a sentence of “[i]f death” must the murder conviction be vacated and the murder count retried. Ibid. It support finds some for this uncertain disposition Dixon, where it said: “Because the felony sentence for murder is the same as the sentence for knowing purposeful penalty murder where the death is not imposed, there is no prejudice to defendant in the circumstances of this case”. 125 N.J. at 506 A.2d 708.

Underlying the disposition appears Court’s to be some notion contingent or construct prejudice. future The Court as- if, future, sumes that exposed defendant is not sentence, death guilty it does not matter whether he is felony murder or some non-capital other form of murder be- penalties however, cause the are the same. simply wrong, It is non-capital to conclude that because the sentences same, felony murder are the the convictions for those respective fungible. murders are the same. Homicides are not Though the sentence for murder is the same as the murder, sentence for intentional the offenses are defined differ- ently stigma and the attached to the former is smaller. The constitutionally jury entitled to have the consider

defendant supportable by rationally of the possible forms homicide all he or in to determine which kind of homicide she order evidence Rose, 2d 548 A. 1058 has committed. State J., In (1988)(Handler, dissenting). options case the should this manslaugh only intentional murder but all forms of include manslaughter, ter, including passion/provocation see discus 534-536, 182-183, sion, 2d as non- at 601 A. at as well infra murder, felony In of capital including murder. the absence a in felony there no confidence the charge for murder can be guilt. jury’s the determination of criminal soundness of sum, significant jury’s in case is the the concern this that robbery an that defendant committed a as “of- determination sentencing purposes may fairly- fense” for not have been as soundly-based jury’s informed and as would have been a verdict robbery. the crime of guilty that defendant was of substantive persuaded I am thus that the serious defects inherent guilt robbery to determine of failure have substantive prior initiating to its deliberations on the require non-capital of death sentence vacation defendant’s mur- conviction, der as well as his conviction murder and his death sentence.

II Although charged the trial court with lesser- manslaughter aggravated included offenses of and reckless manslaughter, charge passion/provocation it did not man- slaughter. argues passion/provocation Defendant that man- slaughter charged. agree. I should have been presented supports charge passion/provo- evidence a manslaughter. cation There was no indication that defendant unravelling any prior to the had intention kill the victim drug According prosecution, transaction. cocaine, only purchase “16th” had while victim $114 $120, though the market value the street wanted even was cocaine; only $80-85 for amount of as two men house, proceeded they defendant’s having toward were heard argument”; “loud conversation” or a “loud approximately p.m., daughter, Shaw, 9:00 defendant’s Dia telephoned the police dad,” report guys jumping that “two my are and at trial, she testified that she her grappling saw father man; another Marie Simmons testified that when defendant evening, arrived at her house later that she “a noticed scar on arm, blood”; oozing his Berry, cut that James who was night, also at Ms. house Simmons’s testified that defendant right had eye”; a “bruise underneath his Talley Charlotte Sunday, August testified that when she saw defendant on 1989, face,” big he had “this black and blue mark on his and a arm; Investigator Morgan mark on his Ronald testified that on wound, August 28th, “puncture open he observed an a round- type upper bicep. wound” Mr. arm Purnell’s his 541, skeptically,” Court views “that evidence ante 186, A. 2d at light but concludes that even considered “in the defendant, positive most clearly to that evidence does not passion/provocation indicate appropriateness charge.” the of a 542, Id. at 601 A.2d at 186. view,

In my provides adequate suggest the record to evidence parties engaged that the started fight victim the the in mutual combat. The evidence of was devel defendant’s wound oped byon and relied the State itself. Since the record does not sustained, precisely very reveal when or its how the wound provides a existence rational basis a to conclude that killing passion/provocation the a It sur constituted homicide. passes the of evidence that this Court found to be suffi level Mauricio, (1990). cient in 117 N.J. 568 A.2d Mauricio, attacking the victim was seen the defendant twenty prior minutes the incident that ended in the victim’s case, Mauricio, death. Id. at 568 A. 2d 879. In this unlike persons witnesses start of attacking saw the defendant at the the same encounter that ended in the victim’s death. Particu larly prosecution, such must capital-murder evidence be given complete choice of to the' end that

viewed to determina- possible types of homicide assure its factual application law on the evidence and its are as tions based Although possible. complete, and fair as comprehensive, accept principle respect this the crime majority to seems murder, ignores respect the crime of it it with passion/provocation manslaughter.

Ill applied urges plain as error that the court Defendant trial jurors. excusing death-scrupled legally incorrect standard for particular jurors, argues he Pointing to voir dire four only qualified jurors “unequivocally court those that the who penalty” [they] impose would death indicated meaningful follow-up questioning those excluded without who ability to expressed impose about their death. Ac- doubts had defendant, jurors might cording to those well have been death qualified, impose penalty death albeit more reluctant eventually jurors The Court dismisses those than the chosen. 534-535, contentions. Ante at 601 A.2d at 182-183. open-ended repeatedly that use of This Court has stressed process questions “important juror is an ingredient” II, 113 N.J. 2d death-qualification. A. Williams (1988). Here, however, death-qualification assumed a question initial pattern typical open-ended recent cases: an of by a juror’s thoughts penalty on the followed series on a death to leading, questions seemingly calculated elicit of closed-ended response. Biegenwald, a 126 N.J. “correct” See State IV) (“The (1991) open- initial (Biegenwald 594 .2d172 court’s A depends’ response ‘it question and variations on the were ended closed-ended, that, by suggestive questions often followed too response.”); surprisingly, elicited the obvious ‘correct’ (Handler, Dixon, supra, A.2d J., dissenting concurring). and selection, beginning day At the of each trial of court statute, on New Jersey’s death-penalty provid- oriented the ing of examples aggravating weigh- factors and describing ing aggravating mitigating of and Prospective jurors factors. questionnaires completed then written that solicited information jurors’ family, employment, familiarity on experience justice courts criminal system, knowledge and the the case or therein, any participants impartial to be ability variety in a situations, ability to law. During follow the individual voir dire, probed (or responses the court into troublesome non- responses) questionnaire. It on then asked several closed- questions respecting juror’s ended ability impose a to the death Many penalty. purely of these hypothetical included situations statutory murder, aggravating based on factors such prior as a police officer, hire, a murder of a or a murder for well as as a involving drugs. case jurors The court also asked about their ability impartial light be of notorious incident which County the former resigned having Camden Prosecutor after story fabricated a criminal assault on himself. Those questions precisely of leading, ques- were the sort closed-ended disapproved prior tions we have in our cases. overemphasis

The also jurors’ ability voir dire reveals an weighing process, neglect follow a mechanical of other reasoning sentencing requires. skills that The trial jurors court typically they impose asked whether could they death if penalty aggravating found the existence of an outweighed factor mitigating and concluded that it all factors beyond receiving a reasonable doubt. On an affirmative re- sponse, hypothetical aggravating the court then referred if particular aggravating change factors to see factor would process juror penalty used to determine what would {i.e., imposed be whether would juror weigh still the factors automatically way another). or would vote one court typically hypothetical aggravating referred to the three conviction, hire, prior factors —a murder for and mur- any policeman juror’s of a see whether would affect the der —to decision-making process.

Significantly, question jurors the court did not about the so- aggravating “felony actually murder” factor that called so, might in case. Had it done it have found other present this engage weighing process in jurors fairly. who could not IV, supra, Biegenwald 126 N.J. at 594 A. 2d 172 See State (“voir questioning aggra dire should include about evidence of presented during vating sentencing factors that will be proceeding may and that with reasonable likelihood have such prospective juror on a as to render him or her an effect standard.”). ‘substantially impaired’ under the Adams-Witt hypothetical aggravating Only one of the three factors was case, present namely, prior in this murder conviction. The court, however, jurors did not ask to consider the effect of the Hence, aggravating prior-murder-conviction factor alone. court jurors fairly and counsel could not winnow out who could not weigh aggravating factor. indicated in Biegenwald that We IV present capital-murder prosecution, that when that factor is in a death-qualification juror process. it must be addressed in the could, turn, requirement 126 N.J. at 594 A.2d 172. That 43-44, impel impanelling juries necessary. if Id. at two suggest, approve, 594 A .2d 172. We did not nor could we significance aggra of that voir dire which the existence and vating glossed could be or obscured. factor over

IV court instructed the guilt phase, At the close of the the trial jury respect presumption of innocence and burden “[wjhile your duty give proof. It told the it is doubt, every you’re not the defendant the benefit of reasonable to search for to search for the truth.” The doubt. You are “your the truth from court added: sole interest is to ascertain you’ve that’s in the heard.” The all evidence case is not a court also advised the that “a reasonable doubt merely speculative fanciful or that one with a doubt which jury skeptical might produce.” mind It further instructed ignores interpretation a of the that “a doubt which reasonable ... is not a doubt.” These instructions evidence reasonable improper, they implied jury were that the could convict theory likely if and more the State’s was reasonable Although phrase “beyond than not. it a reason- true used the doubt,” phrase the court defined that so as to render it able indistinguishable preponderance-of-the-evidence from a mere standard. “ stated, Concededly, ‘portions of a as this Court has often charge alleged in iso to be erroneous cannot be dealt with ” charge lation’ and “the should be examined as whole Marshall, supra, effect.” 123 determine its overall State v. 135, 420, (quoting 63 Wilbely, N.J. at 586 A. 2d 85 N.J. 422, (1973)). Marshall, in held 307 A. 2d 608 Thus this Court jurors that the trial court’s exhortation to the that their verdict truth,” given “declare the at the end of otherwise should instructions, was not error. Id. 123 at correct reversible N.J. 136, Hunt, Similarly, supra, 586 A.2d 85. v. 115 N.J. State 372, 1259, that the trial at 558 A.2d the defendant contended proof by instructing the court had diluted the State’s burden of duty it to determine “where the truth rests.” jury that had rejected argument, noting the defendant’s that the This Court below, that the trial court object defendant had failed to and provided jury on the State’s had detailed instructions to guilt beyond a reasonable prove the defendant’s burden Thus, “[ljooking charge entirety, in its there was doubt. at the 373, Biegenwald, v. no error.” Id. at 558 A.2d 1259. State 13, 41, (1987), jury trial court told the 106 524 A. 2d 130 N.J. really concept very doubt “is basic and that the reasonable simple.” This admonished trial courts not to “un very Court jury duty or “trivialize the awesome of the derstate[]” beyond guilt proved determine whether the defendant’s was Ibid, Ferreira, (quoting doubt.” Commonwealth v. reasonable held, (1977)). The 1272 Court 373 Mass. N.E.2d however, context[,] challenged portion that when “[r]ead error.” does constitute Id. 524 A.2d 130. It noted correctly that the trial court had defined reasonable doubt comments, ensuring fully had made other that the accurately apprised proof. of the State’s burden of See also Clausell, 332-35, (1990) A .2d (court’s doubt, charge entirety, on reasonable when read in its adequate). was more than

Here, noted, portions charge improperly as both de- ignores fined a as reasonable doubt doubt which a reason- “[a] evidence,” interpretation and, time, able at the same Moreover, exhorted the to “search for the truth.” other aspects charge accentuated the admonition that “truth” Thus, guilt. could critical be a determinant of the court told jury “[y]ou you and alone decide which of the facts you’ve heard are correct” and that credit and “[t]he for the defense you you belief must be determined and added). (Emphasis alone.” general proposition may

As a such instructions be constitu tionally permissible given part lengthy charge if as of a that is reasonably complete accurate and when viewed as a whole. Marshall, supra, See 586 A .2d85. In a case, however, indulgent. we cannot afford to be so exacting strictures of fundamental fairness command more and punctilious scrutiny potential instructions to discern capital-murder prosecution, confuse. the context it is essential that the trial court’s instructions be reviewed metic statement, ulously any singly to determine whether others, a risk of was incorrect and sufficient to create mislead ing aspect responsibilities. on a fundamental of its they carry Here there were mistaken communications and did that risk.

V reasons, foregoing part in in For the I concur and dissent part judgment from the of the Court. part For part and reversal in Justice affirmance —Chief

WILENTZ, CLIFFORD, POLLOCK, and Justices O’HERN, GARIBALDI STEIN— part

Concurring dissenting part in —Justice HANDLER—1.

601 A.2d 198 JERSEY, PLAINTIFF-APPELLANT, NEW STATE OF v. DARRELL MITCHELL, DEFENDANT-RESPONDENT. Argued January October 1991 Decided 1992.

Case Details

Case Name: State v. Purnell

Court Name: Supreme Court of New Jersey

Date Published: Jan 15, 1992

Citation: 601 A.2d 175

Court Abbreviation: N.J.