*1 gоssipy And aside whatever stuff or Q: whatever heard? put you A: Yes, sir. Including those other items that Q: we talked about? Nodding affirmatively.) A: [********] Right.
A: Do think that that basic Q: about the of innocence you perception presumption as it is called would be affected in mind the fact that know that he your by you had a conviction of murder? prior A: Can that? you repeat goes He is to be innocent Q: when he to trial here. presumed A: sir. Yes, You understand that. Q: Right. A: do think the have of that Q: Now, you perception you principle, presump- tion of innocence, would be affected because know that he had a you prior conviction of murder? A: sir. No, You could Q: keep completely separate apart? A: sir. Yes, right. All Then I am satisfied and Mr. Revill can then [THE COURT]: Okay. number____ take chair Mr. peremptorily Revill was excused the defendant accepted by soon as he was the court.
For WILENTZ, —Chief Justice and Justices affirmance CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN—6.
For reversal —Justice HANDLER-1. PLAINTIFF-RESPONDENT, JERSEY,
STATE OF NEW RAMSEUR, DEFENDANT-APPELLANT. THOMAS C.
Argued February Decided March1987. *24 Smith, Jr., Deputy James K. Defender, Lois A. DeJu- Public lio, Deputy Defender, First Assistant and Matthew Public Astore, Deputy Defender, Assistant argued Public the cause *25 n for (Thomas Smith, Jr., S. appellant Acting Former Public Smith, Jr., Defender, James K. attorney; counsel; Lois A. of DeJulio, Astore, Borman, Matthew L. Judith Jane Ellen Haburay, Kern, Wyk, Claudia Van and Patricia Assistant Defenders, Deputy briefs). Public on the Schneider, George L. Prosecutor, County Former Essex and Brunell, Hilary L. Prosecutor, Former County Assistant ar-
153 Schneider, gued respondent attorney; (George cause L. Brunell, Hilary Duelly, L. Elizabeth A. and J. Fried- Marc briefs). man, Prosecutors, County Assistant on the Feldman, Marc of Virginia bars, member Maryland and argued the cause for amici curiae American Civil Liberties Union of Jersey New Legal and NAACP Defense and Edu- Fund, cation Inc. {Jeffrey Fogel, E. attorney; Marc Feldman Williams, and Robert brief). F of counsel on and Kimmelman, Irwin I. Attorney Former of General New Jersey, Stone, and Debra L. Deputy General, Attorney argued the cause for amicus Attorney curiae General I. Kim- {Irwin melman, attorney; Debra L. Paskow, Stone and Anne C. General, Deputy Attorney counsel). of Fortunato, Crystal, Joseph Stavis, Daniel A. Morton William J. submitted a on Volonte brief behalf amicus Guild, The Lawyers Chapter. curiae National Jersey New Stephen M. Latimer submitted a brief on behalf amicus Rutgers curiae University School of Law—Prison Law Clinic. rely Leave to on the on brief submitted behalf of Nation- Lawyers granted al was Guild to amicus curiae American Committee, Program Jersey Friends Service New Justice {Nor- Scher, Jersey gaard attorneys), New amicus curiae Churches, Drakeman, attorney). Council of Inc. L. {Donald III. IV. Pretrial Issues II. Facts I. The Act Constitutionality Introduction .................................................................. A. A. D. Death Qualification ..................................... C. Voir B. B. C. Constitutionality of Selection Struck Jury Constitutionality Constitutionality N.J.S.A. ........................................................................ Dire....... ..................................................................... of Essex ............................................................... .............................................................. ............................................................. ........................................................ N.J.S.A. County Death Penalty Juries Table of 2C:ll-3......................................., 2C:ll-3c(4)(c).................................. ......................................... Per Contents Se ................................. [156] [166] [160] [168] [154] *26 154 Contents—Continued
Table of VI. Sentencing Issues V. Trial Conclusion ................................................................... H. A. D. Plea..................................................... B. Trial G. A. Use of Non Vult E. B. C. C. F. Constitutionality Flight 2. Admissibility Instructions Instructions Concerning Diminished Prosecutorial 3. Other Proportionality 1. Psychiatric Defense ...................................................... Issues .................................................................. Jury Deadlock ....................................................... Jury Court Comments on Evidence ....................................... Charge Coercion Errors at Capacity Concerning Mitigation of Prior Misconduct ............................................................ Review ................................................... ........................................................... of N.J.S.A. ........................................................ Sentencing Instructions Acts Jury Deliberations ................................................. 2C: ............................................... 1X—3c(4)(c)as ........................................... ......................................... ........................................ Applied .................................299 Defendant............ [600] [292] [304] [267] [261] [261] [264] [282] [279] [271] [286] [271] opinion Court was delivered WILENTZ, C.J.
In Biegenwald, this matter and in N.J. State (1987), today, also decided the defendant has been convicted of murder and sentenced to death. appeals, their both defend- ants attack the constitutionality of this capital punish- state’s (L.1982, Ill) ment act c. under the federal and Jersey New They Constitutions. also contend that various trial errors war- rant reversal of their convictions and their sentences.
We hold
capital punishment
that the
respects
act is in all
constitutional. We sustain the
guilty
verdict of
in each case.
conclude, however,
portions
We
that critical
of the trial courts’
instructions in
sentencing
proceedings were erroneous. See
299-300;
v. Biegenwald,
State
In State v. Biegenwald, the trial court on remand shall conduct sentencing proceeding; matter, a new in the Ramseur because we have ruled that the death cannot im- remand, posed on defendant, the trial court shall sentence the act, in accordance with the imprisonment specific for a term years parole no eligibility thirty years. with *27 We first describe penalty will the death act facts of and the this will then case. We treat the questions constitutional follow that a allegations with discussion of Ramseur’s of trial errors.1 sentencing so, Biegen- v. doing
Before we note State that this case and wald among punishment the were first cases tried under reimposition penalty the of the death in this state. Both the difficulty responsibility being among involved in the first preside judges trial over a capital great, cause were as were challenge. the of two judges talents the trial who met that Our disagreement rulings any with some of their way should not in they detract from credit to quality the which are entitled the of performance.2 their cases, today, argued together. decided 1These two were We have elected to major opinion, limiting
treat most issues common to both in this our decision Biegenwald largely only. questions affecting in State v. that case Biegenwald, Various issues in this case and in critical but unsettled to both filed, appeals by Legislature when were these have been resolved and the (L.1985, 178) Supreme Legislature United States Court. The in 1985 c. made it beyond proving clear that the State had the burden doubt that of reasonable (as statutory outweighed aggravating mitigating factors factors ex herein). plained The cases instructions in both did not conform with this requirement. Legislature concerning jury its also clarified intention deadlock, requiring jury explicitly the trial its court to inform failure imprison of reach a unanimous death verdict would result in a sentence (L.1985, 178); thirty years parole strongly ment without c. this clarification supported part of the case the conclusion that another instructions in this was by improper. important issue was settled See 311. Another infra U.S.-, McCree, Supreme United Court’s States decision in Lockhart (1986), upheld 106 S.Ct. L.Ed.2d 137 the constitu in which Court tionality qualification substantially system of a death the same as that Jersey. used in New by Judges’ 2We note also excellent work the Trial Committee on done Causes, Judge Capital consisting experienced judges and chaired John Marzulli, legislation shortly established effect. That which was after took work, necessarily advisory, leading production of a committee’s to the Bench Cases, many Capital anticipated questions Manual for of the difficult
I. The Act (hereafter to as “the act referred Jersey’s death New murder Act”) amendment to the passed in 1982 as an was Justice. N.J.S.A. 2C:ll-3. of our Code of Criminal provisions this Court first case to come before as this is the Inasmuch imposed pursuant to the validity a sentence challenging the legislation in some Act, provisions of the will set forth the we detail. punishment trial which
The Act calls for a bifurcated following the establish- separate proceeding determined c(l).3 guilt phase, the central In the guilt. Sec. ment murder, i.e., committed question is whether the defendant partici- death or purposely knowingly caused he whether *28 of during the commission in one of a number of crimes pated crime (similar to the former common-law death resulted which (2), (3). murder”). a(l), A defendant is “felony Sec. of i.e., “death-eligi- sentencing proceeding, subject separate to a ble,” guilty purposeful found of only if he has been or by the murder his own hand knowing murder and committed “Death-eligible” c. defend- someone else to do so. Sec. paid imprison- thirty-year term of either death or at least a ants face on the outcome of the sentenc- parole, depending ment without c(l). Defendants convicted of murder but ing proceeding. Sec. of at least “death-eligible” prison to a term not are sentenced years parole. Sec. b. thirty without them, cases, provided helpful might analyzed recom- most arise in such by widely only by counsel for the bench but It has been used mendations. prosecution and for the defense. the 2C:ll-3, containing provisions, consisted of five the Code’s murder 3N.J.S.A. subsections, (a) (e), The death these crimes and their trials. to at the time of convenience, (c) (e). provisions in subsections to For are found in instance, shall, c(l) designate referring provisions use Sec. to we for to these 2C:ll-3c(l). N.J.S.A. In sentencing proceeding, the ordinarily conducted before the guilt, required same that determined the prove, State is to beyond doubt, a reasonable the existence one or more “ag- of gravating factors” specifically c(4)(a)-(h). set forth in Section aggravating The factors are: (a) previously murder; The defendant has been convicted of (b) murder, purposely knowingly the commission of the the defendant or grave person victim; created a risk of death to another in addition to (c) vile, outrageously wantonly The murder was or horrible or inhuman in torture, mind, depravity battery[4] that it aggravated involved of or an to the
victim; (d) receipt, The defendant committed the murder consideration for the or expectation receipt any thing value; pecuniary of of (e) procured by The payment defendant the commission of the offense or promise payment anything pecuniary value; of of of (f) detection, purpose escaping appre- The murder was committed for the trial, hension, punishment or confinement another offense committed another; defendant or (g) engaged The offense was committed while the was defendant of, attempt commit, flight committing attempt- commission or an to or or after ing assault, arson, robbery, burglary kidnapping; to commit sexual or or (h) public servant, The defendant murdered a as defined in 2C:27- [A/V.S.A.] engaged duties, performance while the victim was in the of his official or public because of the victim’s status as a servant. Thereafter may produce any defendant evidence “miti- gating c(5)(a)-(h)- factors” set forth in mitigating Section The factors are: (a) The defendant was under the influence of extreme mental emotional or prosecution;
disturbance insufficient to constitute a defense to (b) solicited, participated The victim consented the conduct which death; resulted in his (c) age murder; defendant the time (d) capacity appreciate wrongfulness The defendant’s of his conduct or requirements significantly to conform his conduct of the law was *29 impaired intoxication, as the result of mental or disease defect or not to a but degree prosecution; sufficient to to constitute defense (e) The defendant was under unusual and substantial duress to insufficient prosecution; constitute a defense to (f) significant history prior activity; no defendant has criminal changed "aggravated battery” "aggravated A 1985 amendment to assault.” L.1985, change, For of this see at 206 c. 178. discussion note 33. infra in the (g) assistance to the State prosecu- rendered substantial The defendant or murder; for the crime of
tion of another person record (h) character or to the defendant’s other factor which is relevant Any of the offense. to the circumstances or aggravat- defendant of the required notify to The State is given to be prove, the notice it intends to ing factors 3:13—4(a); R. see Sec. discovery guilt phase. in the during permitted to defendant are c(2)(e). Both the State and the sentencing proceeding. proofs of other in the rebut applicable to these c(2)(d). An to the Act amendment Sec. aggravating factors accord- prove to requires the State cases allowing the defendant of Evidence while ance the Rules with mitigating factors “reliable” to establish the existence evidence, regard those Rules. A. c. without to relevant factors, mitigating of the Sec. provision The “catch-all” 178. relevant to the defendant’s c(5)(h)(“[a]ny other factor which is offense”), to the circumstances character or record or provision aggravating factors. This counterpart in the has no requirement designed meet the constitutional any relevant evidence present defendant must be allowed 586, 604, Ohio, 438 U.S. mitigation. Lockett v. See (1978) opinion). 2954, 2964, (plurality 57 L.Ed.2d (or jury jury) there is no finds that the If the the court when aggravating factors proven has one or more of the State and that—as the statute read at the beyond a reasonable doubt Biegenwald trials—any aggravating time of the Ramseur and outweighed by one or more of the or factors are “not factor factors,” required sentence the de- mitigating the court is c(2)(a), (3)(a). If the does not so fendant to death. Sec. verdict, find, if it to reach a unanimous the court is unable thirty-year prison least a the defendant to at shall sentence c(3)(b),(c). parole. term without Sec. *30 Legislature
The A. twice Act in 1985. c. amended the changes 478.5 Two of its are of importance substantial in jury’s these cases. One revision weighing concerns the of the aggravating mitigating factors; discussed, just as at the time of thesе trials provided the statute that if jury the found aggravating that the outweighed” factor were factors “not factors, by mitigating the the defendant would be sentenced to c(3)(a). death. Sec. That section now reads that “if the jury any ... finds aggravating that factors exist and that all of the aggravating outweigh factors beyond a reasonable doubt all of mitigating factors, the the court shall sentence the defendant to given death.” For the reasons in v. Biegenwald, supra, State 64-67, interpretation portion our 106N.J. at of this of the statute leg- as it the time read at of these trials conforms with this later is read say, islative amendment. That we the statute under Biegenwald requiring, which Ramseur and were sentenced as as imposition penalty, jury finding a condition for the of the death aggravating outweigh mitigating that the factors factors the be- amendment, yond a Even the we be- reasonable doubt. without history reading; strongly supports lieve the of the Act with amendment, simple compels justice the we think it. important purpose
The other revision for the of these cases subsection, f, requires was the addition of a new Section L.1985, changes opinion by 5Most of to in referred this were effected c. amendment, L.1985, 178. requiring changes: later but two c. effected appeal imposed, prohibiting imposition an where the death is sentence of juveniles. Unfortunately, the death on sentence form the second amend (c. 478) unamended, existing ment takes as law NJ.S.A. if it had not 2C:ll-3 result, previously problems been amended 178. No of c. substance Legislature’s inconsistency intention in both is clear—there is no between the is, however, referring potential two amendments. There some confusion L.1985, statutory designations. example, section For c. N.J.S.A. provisions requiring jury 2C:ll-3f inform the of the contains court to effect deadlock; L.1985, very says nothing but the same section in c. 478 whatsoev advising consequences er about deadlock and instead prohibits imposition juvenile. death on Resolution found, 1:3-1, designation problem pursuant to N.J.S.A. in N.J. Session Laws 3,No. A-2 to A-6. *31 the trial jury court to inform the that its failure to reach a unanimous death verdict will result in sentencing pursuant to b, i.e., thirty-year Section at least a parole. term without L. 1985, c. 178. That strongly supports amendment our conclusion that trial court this case prejudicial committed error repeatedly attempted when it persuade to the deadlocked unanimity achieve in the sentencing proceeding. Finally, provides the Act appeals from death sentences to this Court as a right, pursuant matter of to our Rules. Sec. e. implemented provision We have that by allowing appeal a direct from 2:2-l(a)(3). the trial court. Formerly R. merely the Act permitted appeal; amended, such an requires Act now an taken, appeal to by public necessary. L.1985, defender if c. 478. This holding amendment codifies our in State v. Koeda- tich, (1984) (allowing public N.J. 553 appeal defender to file on behalf of defendant who did not appeal wish to his death sentence). The Act also formerly required appeal that in an this Court we determine “whether the disproportion- sentence is ate to the imposed cases, in similar considering both the crime and the By defendant.” e. Sec. virtue of the 1985 (L. 1985, 178), however, amendment c. we now must do only so “[u]pon request of the defendant.”6
II.
Facts Stokes, Asaline case, the victim in this grand- lived with her child across the street from defendant’s aunt’s house. She and defendant go together,” “used to relationship having appar- ently years. occasion, existed for several On Ramseur would her, threaten as he during argument did an year about a year and a half killing. before the day following On the those triggered 6This of the amendment was part the decision in presumably (1984), holding Harris, 465 U.S. 79 L.Ed.2d Pulley that such determinations are not proportionality constitutionally required. threats, after learning a house, man had been in her Ramseur her, according told to one of Ms. Stokes’ granddaughters, say yesterday “what he true,” was about to come namely, “that going she was regret it.” That granddaughter also over- heard a during argument loud noise an between them day upon room, entering the left, after Ramseur she saw her grandmother, Stokes, Ms. lying on the floor coming with blood mouth, out wall, of her blood on the and “like a way hole all the through her cheek.” police called, were and Ms. Stokes hospital. was taken to the occasion,
On another three to murder, four months before the rang someone residence, doorbell at the Stokes’ and as one granddaughters it, of her “my grandmother tells on went *32 porch and asked who was it and was—he backed [Ramseur] back down onto the sidewalk my grandmother so could him see my grandmother and he told that he would kill her and the kids just by her herself----” Ms. granddaughter Stokes’ was standing right behind her when that occurred. night killing, again before the during argument, an Ms.
Stokes told Ramseur that drinking “she’s tired of his and tired coming up of him grandkids there with her because if she can’t raise them going them?,” who else was to raise by as recounted neighbor who lived next door exchange. and heard the He told her “You’ll sorry.” That evening same he took a knife kitchen, from her secretly, thought, he but in fact one of Ms. grandchildren Stokes’ saw him. It was the knife he used the day next kill to Ms. Stokes. August
On day killing, Stokes, Ms. one of her grandchildren, grandchildren, some friends neigh- of her and a bor porch home; were on the neighboring another grandchild sunporch. was on Ms. neighbor Stokes’ Her was braiding child, young the hair of a and several the children teasing were generally having each other and fun. At one point, porch Ms. Stokes left the to talk to a mechanic who was standing by the front of a truck they near the house. As
spoke, neighbor “peeping” through her noticed Ramseur window from his aunt’s house across the street. He “had the back, out, looking”; peeping and he he “just curtains was [was] this, just staring like this across street.” He did for a minutes, couple maybe more. house, emerged then
Ramseur from the walked down the porch steps, place and crossed the street to the near the truck talking. patted where Ms. Stokes and the mechanic were He on Ms. Stokes the shoulder. As one recounted: witness her____ just to her He walked like stabbed he stabbed up this, her, When got she down and went she throwed her hands and he her like this and on up stabbing laying her was like this and fell down the truck and was there she by tongue coming leg and her was out and she like stretched her out this so he walked walked from Then he came then leaned over away her]____ back, Pie her____ stabbing He her stabbed was I don’t know times I how ... many at least four know all and then that’s when to throw times, over, she went up her It was arms. so It were fast. I don’t know how many. many. defendant, Other having witnesses also testified that the after Stokes, began stabbed Ms. away, to walk returned but then lay there, inflict additional told his wounds. He victim as she enough others, your voice loud to be heard “If I see kids again going I’m to kill them too.” police
A driving through Newark officer was who the area car, patrol Ramseur, arrived at scene. He his left ran after him stop ordered three times before the defendant complied.
When the ambulance Ms. lying arrived Stokes was the mud bleeding from the chest and face. The two ambulance team *33 members, the emergency University room nurse Hospital, and the assistant County gave medical examiner of Essex testimony concerning of by the number stab received wounds chest, Ms. She major Stokes. had stab wounds the face and including eight two chest wounds about and one-half inches deep pierced lung. also She received a number of stab both wounds on “defense” they arms—called wounds because were inflicted when by Ms. Stokes to defend herself “trie[d] grabbing protecting either the knife or herself from the knife.” The wounds were such that Ms. Stokes did not die immediate- die, testified, kept saying ly. going As witnesses she “I’m to die,” my going “somebody I’m to and asked that hold hand.” grandchild She told a that “she couldn’t breathe.” When screaming saying going “I am ambulance arrived she was said, I personnel to die.” As one of the ambulance was “[a]s stretcher, up put up. picking her to her on the she reached She grabbed going me the collar and she told me she was to die.” going help Her exact were: “Please me. I am to die.” words over____ moving trying all While we were to check “She was stretcher, know, lay you she her out and her on the was know, us, moving, you trying fight you know.” kicking, with fixing in the and started her wounds They put her ambulance bandages. they away, according to the with When drove her, accompanied kept fight- attendant who “she on ambulance ” going T I ing saying going me and am to die. am to die.’ repeated way hospital, this all the to the a ride of four to She hospital did Only upon five minutes. her arrival at the she hospital after an unsuc- unconscious. She died at the become massage. attempt through to revive her direct cardiac cessful 17, 1982, County grand jury indicted September an Essex On (1) murdering on counts: Asaline Thomas Ramseur three 2C:ll-3); (2) pos- (N.J.S.A. knowingly unlawfully Stokes circumstances not manifest- sessing carrying a knife under (3) (Ñ.J.S.A. 2C:39-5d); and know- ly appropriate for lawful use unlawfully possessing purpose a knife with the use ingly and 2C:39-4d). (N.J.S.A. person another unlawfully against it of pretrial to dismiss the indictment Defendant filed a motion groups certain on alleged underrepresentation because motion, jury challenge which County jury panels. The Essex trial, after the was denied. was heard 4, 1983, April jurors was conducted from The voir dire types on the placed The trial court limits April 1983. including restricting questions pose, questions counsel could influ- single inquiry of race would race to the whether about *34 jurors reaching impartial ence the a fair and verdict. Initial- permitted ly, questions the court defense counsel to ask broad concerning prospective jurors how felt about the law. After however, days, two questions he disallowed these he because proper question concluded that jurors was whether comport could jurors with the law. Six were dismissed for ground cause on the they that not comport could with the law. Neither side used all peremptory challenges. its trial,
At presented State a number of witnesses who 25, 1982, testified about the events of August and the threats that had testimony concerning Ramseur made. There also was the medical treatment received Ms. Stokes.
A number of witnesses testified for the defendant. It was killing. conceded that he committed the Friends and relatives of Ramseur testified that substantially his behavior had changed after June apparently when he was the victim of mugging. They a testified precipitated this incident a change personality. in his Mishkin, neuroradiologist,
Dr. Mark a testified that Ramseur (a atrophy shrinkage had or wasting) of the in the brain frontal temporal atrophy progressive lobes. He labelled the based performed Mishkin, CAT on scans on Ramseur. Dr. on cross- examination, pathology stated such preclude a would not normal conduct. Dorothy Lewis,
Dr. psychiatrist who had examined Rams- eur, seizures, psychomotor testified that he suffered from type epilepsy. During a seizure an may individual lose control his possible over or her behavior. Violence is if the person paranoid provoking also circumstances exist. Dr. Lewis paranoid. further testified was that Ramseur Dr. Lewis stated that stabbing during psychomotor occurred such a seizure.
The trial court ruled killing that evidence Ramseur’s 1966 his first was significant wife admissible because it formed a experts’ opinions, basis for the prejudicial and because its *35 that given that the defense admitted potential was minimal rebut purpose Its was to the killed Ms. Stokes. Ramseur capacity. defense of diminished for the on and the State rebuttal experts,
Various other surrebuttal, concerning testified Ramseur’s men- on defendant tal condition. jury insanity the that or diminished court
The trial instructed charge. De- complete defense to the murder capacity was insanity De- instruction. fense wanted to waive the counsel if that objected to the court’s instruction fense also counsel capacity from diminished it that Ramseur suffered jury found him, jury if the made such a argued that acquit must manslaughter. The guilty found finding, Ramseur could be guilty jury found Ramseur objections. The court overruled of murder.7 sentencing proceedings, after three and one-half
During the jury a note to the trial court hours deliberations the sent Sugges- decision. stating “Jury unable to reach unanimous objections, the court Over defense counsel’s please.” tions deliberating, sequestered them charged jurors continue recommence deliberations night, required them to for the morning. supplemental issued instruc- The court also next importance emphasized the jury repeatedly tions to the that reaching jury’s a unanimous verdict. factors were aggravating Eventually, jury found that two vile, wantonly outrageously was or present: the murder torture, depravity of it in that involved horrible or inhuman c(4)(c), victim, mind, battery aggravated to the Sec. or an murder, convicted of Sec. previously had been that Ramseur that defend- c(4)(a). mitigating factors also found: Two were or emotional of extreme mental ant under the influence was prosecution, a defense to to constitute insufficient disturbance appreciate the capacity to c(5)(a), and defendant’s Sec. guilty offenses. also of the two weapon was found 7Defendant wrongfulness his conduct or to conform his conduct to the requirements impaired significantly law was result intoxication, of mental disease or degree defect but not ato prosecution. sufficient to constitute c(5)(d). a defense Sec. aggravating outweighed found that the factors mitigating beyond factors a reasonable doubt. Ramseur was sentenced to death.
III. Constitutionality attacked, both The Act is on federal and state constitutional *36 grounds,8 as violating prohibition against cruel and unusual Const, punishment. VIII, XIV; U.S. Const. amends. N.J. I, para. art. 12. prong One that attack contends that 1947 statute, every penalty death regardless provisions, of its is unconstitutional; capital contends, punishment, defendant con flicts with contemporary decency, standards of constitutes dis proportionate punishment, penological serves no purpose, is inevitably discriminatory, and in respects all those constitutes punishment. cruel and Implicit unusual in the contention of lack penological justification is a claim of denial of substan process, tive due in implicit the contention that the death inevitably is penalty is discriminatory a claim of equal denial of protection. prong
The second
of the attack contends that this statute
sufficiently guide jury
does not
discretion in imposing the death
penalty, that it
arbitrarily,
allows death to strike
discriminato
rily,
unpredictably,
and that
it is therefore cruel and
“in
way
being
unusual
the same
by
struck
lightning is
unusual,”
cruel
238, 309,
Georgia,
Furman v.
408 U.S.
2726, 2762,
346,
(1972)(Stewart, J.,
S.Ct.
33 L.Ed.2d
concur
ring). Defendant also
specific
attacks a
aggravating factor of
8The constitutional contentions addressed herein include those asserted both
Biegenwald,
this case and in State v.
Before
these
we
testing
penalty
of a death
law
both federal
ment that
appropriate.
capital
is
That
and state constitutional standards
interest or local
punishment
particular
is a matter of
state
(see
policy
require
does not
a uniform national
concern and
J.,
Hunt,
338,
(1982)(Handler,
concurring))
v.
91 N.J.
State
evident,
Supreme
to the
Court of
just
is
to this Court but
Ramos,
992,
v.
463 U.S.
the United States. See California
3446, 3459-60,
1013-14,
1188-89
77 L.Ed.2d
(1983)
elementary
that States
(noting
case that “[i]t
justice
greater protections in their criminal
provide
are free to
Indeed,
requires”).
two
system than the Federal Constitution
violative of their
declared their death
laws
states have
Anderson,
628, 493
People 6 Cal.3d
own state constitutions.
Cal.Rptr.
den.,
P.2d
cert.
406 U.S.
92 S.Ct.
Watson,
(1972);
Attorney v.
by the fourteenth amendment to the United States Constitution. case, however, point In this the two constitutions toward the result.”). Quite frequently rely same reasoning we here on the Supreme of the United States plurality opinion Court’s Gregg supra, 153, 2909, Georgia, 859, v. 428 U.S. 96 S.Ct. 49 L.Ed.2d support our fully conclusions. doWe so aware that in determining validity challenged a state action under our Constitution, own obliged we are not reasoning adhere Supreme or the results of the Court’s federal constitutional required decisions. That we are not Supreme to follow the not, analysis however, Court’s does precluded mean we are that following analysis from that persuasive, where we find it as we Hunt, often do in this case.9 State supra, See v. 91 atN.J. 363 (Handler, J., (“The concurring) Court, opinions Supreme not controlling while construing on state courts their own constitutions, are important guides nevertheless subjects on the address.”). they squarely which Constitutionality
A.
Penalty
of Death
Per Se
written,
Defendant claims
no
matter how
a statute-
providing
punishment
inflicts cruel and unusual
approach
9We
holdings
note that this
is in
with
accord
state
most
challenges
per
courts that
penalty
have considered
se
to the death
based on
See,
analogues
eighth
e.g.,
state constitutional
to the
amendment.
ex
State
rel.
Mason,
908,
(Mo.1980)
banc);
(en
v.
594 S. W.2d
916
State ex rel. Serna
Westfall
351,
Hodges,
787,
(1976);
v.
89 N.M.
P.2d
552
792-93
Commonwealth v.
16,
937,
Zettlemoyer,
den.,
970,
(1982),
Pa.
500
454 A.2d
cert.
461 U.S.
2444,
(1983);
765,
State,
169 punishment, since penalty the death contemporary violates decency, disproportionate, standards of is penological has no justification, inevitably and is discriminatory.
To the extent that defendant
eighth
relies on the
amendment
applicable
as made
through
to the states
the fourteenth amend
ment,
660, 666,
see
California,
Robinson v.
370 U.S.
82 S.Ct.
1417, 1420,
758,
(1962),
8 L.Ed.2d
763
may
his contention
summarily
153,
dismissed. Gregg Georgia, supra,
v.
428 U.S.
2909,
96
above, however,
S.Ct.
unusual paragraph under Article of our Constitution is generally applied the same as that under the federal Constitu inquiries First, tion. Three required. are punishment does the for the crime conform contemporary with standards of decen Second, cy? punishment grossly is the disproportionate to the Third, punishment go beyond offense? does the what is neces sary accomplish any legitimate penological objective? Gregg Georgia, supra, at U.S. at L.Ed.2d 874-75; Marets, (1983); State v. Des N.J. State v. Hampton, (1972). 273-74 N.J. determining penalty whether the death conforms with
contemporary decency, standards of we first observe that there nothing legislative, Jersey’s judicial, New or cultural history suggest significantly and traditions to there is a differ ent attitude punishment toward in this state from that prevailing regarded appro nationwide. Death has been an priate punishment throughout history. murder this state’s 1898, 235, 108; 1796, DC, 3; See L. c. sec. L. c. sec. Revision N.J. 1709-1877, Crimes, (death sec. at 239 was mandato ry first-degree 1877). for all murders from 1709 to It would be very argument difficult to sustain the that the framers of our capital punishment beyond pale Constitution viewed
170 Indeed, society. civilized very same constitutional doc prohibit uments that the infliction of cruel punish and unusual provisions ment contain implicitly recognizing appropriate capital ness of punishment. I, para. N.J. Const. art. 11 1947 of (referring power to deny to persons bail to “capital accused of Const, offenses”); VI, 5, N.J. para. 1(c) art. sec. 1947 of (authorizing appeal direct “capital causes”); this Court in Const, I, N.J. para. art. (referring 10 power to deny 1844 of persons bail to accused “capital offenses”). In his mono graph Convention, to the Constitutional Dean specifical Heckel ly wrote that the cruel and punishment unusual clause of the proposed Constitution per prohibit would not se punish Heckel, ment. Rights,” “The Bill of in 2 Proceedings State New Jersey Constitutional Convention at 1947 1336, (S. 1354 Goldmann Crystal 1951). & H. ed. Jersey New courts upheld have the constitutionality of the penalty. death Tomassi, (1907), State v. 75 739 N.J.L. Court of Errors Appeals rejected the claim that electrocu tion, preceded by solitary confinement, constituted cruel and punishment unusual under our Constitution. Id. 746-47. More recently, rejected this Court an eighth attack based on the amendment, finding that judiciary “the say cannot ” death beyond is now ‘the limits of civilized standards.’ Forcella, 263, State v. (1968) 52 N.J. 293 (quoting Trop v. Dulles, 86, 98, 590, 356 U.S. 78 2 L.Ed.2d (1958) (plurality opinion)), grounds rev’d on other sub nom. Funicello v. Jersey, New U.S. S. Ct. 29 L.Ed. (1971). 2d 859
This background, historical relevant, while is not in and of dispositive of our itself resolution of legal issue. provisions Constitutional drafted in different times and intend ed to embody general principles need not be limited to the specifics then in the minds of the framers. generally See Brennan, Adjudication “Constitutional and the Death Penalty: A Court,” View From (1986); Harv.L.Rev. 325-28 Nickel, Always “Does the Mean It Munzer & Constitution What 1029, 1042-45, (1977) (discuss- Meant?,” 77 Colum.L.Rev. ing meanings given generally, and to new Constitution eighth particular). amendment in Thus even the fact that the very prohibition clearly also same Constitution that contains disposi- contemplates permissible punishment death as a is not Obviously thought may what was not cruel then tive. States, differently viewed now. See Weems United U.S. *40 349, 378, 544, 553, 793, (1910) (cruel 30 S.Ct. 54 L.Ed. acquire meaning public punishment “may unusual clause as justice”); Trop opinion enlightened by becomes a humane v. 101, 598, Dulles, supra, 356 at at L.Ed.2d at 642 U.S. (amendment meaning evolving “must draw its from the stan- progress maturing a decency dards of that mark the of socie- ty”). contemporary search must be for standards of Our decency. penalty not accord with
The view that the death
does
decency
support
much of its
contemporary standards of
draws
convinced,
reasons,
penalty’s
many
from those
for
of the death
of the
futility, indecency
inhumanity. They
include some
subject, many
the
of whom believe
best-informed students of
if
informed.
society
that
would share their views
it were better
See,
supra, 408
at
92 S.Ct.
e.g.,
Georgia,
Furman v.
U.S.
Bedau,
(Marshall, J.,
concurring);
at
We therefore will inflicted issue—including punishment of the of this the horrors by society, inflicted on the victim by on the murderer or those requiring regard question this as the murderer—for we do not conflicting many permitting or even our resolution question possible values. Nor does the the relate to citizen’s response in penalty, an academic discussion of the death good evil, punishment, the aims of and of the ultimate Rather, of humanity. question nature and fate is one of fact: do the contemporary morality standards of society our capital punishment deem appropriate penalty to be an for murder? We have no although doubt answer: view unanimous, belief, is widely it is a strongly held and a held in our society, one appropriate penalty may murder be death. strongest
One of the
contemporary
indicators of this
stan
dard
Legislature passed
fact
the Act
1982.
Obviously, passage of
dispositive.
that law cannot be
Such an
interpretation would render the constitutional ban on cruel and
punishments
unusual
tautology,
mere
eliminating its function
legislative
power. Nevertheless,
a limitation on
since con
temporary community
test,
are
legis
standards
such recent
lation,
by
represent
enacted
those who
community,
must be
great
given
deference.
Gregg Georgia, supra,
See
428 U.S.
There been a of this in for a number suspension punishment capital country of in our years—since State. The reason is that the Federal Supreme Court has not reached for and known as to the resolved issues constitutionality capital to do punishment. failure so has ended effectively with to every defendant sentenced to death before the respect punishment issues Court the to rest. lays [Id. Federal Supreme 82.] moreover, During period, that own indicated from our review sentences, history death the of individual defendants success- fully proceedings avoided execution and appli- innumerable courts, courts, our cations before state federal and back and words, may forth. In othеr the lack of executions have had judicial community more to do with standards than with stan- dards. jurors
If the actions of are be taken as a true reflection of society’s morality, the strongly most recent supports evidence penalty the view that the death contemporary does not violate decency. capital punish- standards of Since the restoration of 1982, juries ment have imposed twenty-six this state Defender, sentences of death. Letter from Office of the Public our inquiry necessarily Feb. 1987. And while limited to Jersey, passage penalty New since 1972 death statutes in states, thirty-seven “Capital see Punishment 1984: Abandon- ing the Pursuit of Fairness Consistency,” 69 Cornell (1984), is strong community L.Rev. evidence of Despite diversity, our standards here. we are nation of When, decade, thirty-seven shared values. in the course aof penalty, probability legisla- states call for death accurately ture of each state community’s reflects its standards approaches certainty.
If in support there was some decrease for the death 1960s, during people if then there were more than there are immoral, now who found the of death indecent infliction change suggest significant evidence does not that the was or of long meaning provision duration. When the of a constitutional clause, punishment depends, as does the cruel and on unusual standards, community consequent validity when important affecting death—depends, most laws—laws life and therefore, standards, judiciary also on those must measure registers only changes this critical factor with a scale *42 significance, only change, in significant not the extent of but
174 change light history. duration of in of our also As far as see, nothing change approaching can even that kind of we country occurred in the 1960s has occurred in this or in ever this state on this issue.10 Jersey’s penalty
We hold that New death does not conflict contemporary decency standards of in this state. The with prohibition claim that it is in violation of our state constitutional against punishment cruel and unusual on this must there- basis fore denied. penalty grossly dispro-
It is further claimed that the death portionate punishment, any penalty and that death statute punishment therefore violates the cruel and unusual clause. A function of the constitutional ban on cruel and un punishments guard against punishments usual is to that are grossly disproportionate in relation to the crime. v. Des State Marets, amendment, eighth 92 N.J. 82. Under the Supreme the United States Court has invalidated the death penalty disproportionate punishment as an excessive and when adult, imposed rape Georgia, for the of an 433 Coker U.S. (1977), participation 53 S.Ct. L.Ed.2d 982 or for felony getaway driver of car where the homicide was by kill, committed others and the defendant had no intent to Florida, Enmund v. U.S. L.Ed.2d (1982). murder, however, punish- When the crime is the claim that by by very “disproportionate” ment death is its nature loses Legislature’s capital punish 10Those who contend that the enactment of a accurately community ment statute does not reflect standards must also deal provided by public opinion polls. Surveys with the evidence conducted Eagleton Rutgers University Institute of Politics of approximately Jersey support imposi indicate that 72% of New residents regard public opinion tion of the death for murder. While we do not law, polls ignore as decisive of issues of constitutional we cannot their largely empirical community relevance to the determination of the content of standards.
175 meaning. Neither objective grounds relied on as indica tors of the death penalty’s excessiveness in the circumstances presented in Enmund, Coker and legislatures attitudes of practices nationwide and the juries, supports the claim that penalty the death punishment an excessive for murder. All thirty-seven states post-Furman that have enacted penal death ty statutes include eligible offense, and, murder as an noted, previously twenty-six juries imposed have the death penalty for murder since the revival of punishment in this state 1982. say Nor can we that judgment,” “our own Georgia, supra, 597, Coker v. 2868, atU.S. at S. Ct. 992, L.Ed.2d at leads us to a different conclusion. “Murder is the most heinous and proscribed vile offense by our criminal Serrone, laws.” (1983). State v. 95 N.J. Measuring the death, punishment, crime, against death, causing it is most appreciate difficult to penalty’s the death excessiveness.
We believe that the claim of “disproportionality,” in the context, penalty death is a short-hand expressing method of either legitimate the contention penological that the goals be, society be, could and therefore must served a lesser punishment, or the contention that the penalty death violates contemporary morality. standards of These contentions are better dealt with on their own merits. We agree therefore with plurality in Gregg v. Georgia, at U.S. although 49 L.Ed.2d at the death penalty irrevocable, is severe and it is not an excessive or disproportionate penalty for the crime of murder. Act,
Defendant claims that the every indeed death act, justifiable penological has no purpose and therefore vio- lates punishment provision the cruel and unusual of our Consti- tution. Amicus American Civil Liberties advances Union argument related punishment the cruel and unusual clause, I, in conjunction paragraph with Article of our Consti-
tution,11 requires compelling govern- the State to demonstrate a unavailability mental interest and the of less restrictive mea- may sures it intentionally deprive before someone of the funda- right mental to life.
We believe that
these contentions misconceive the
guarantees upon
they rely.12
constitutional
which
Our function
*44
I,
1,
paragraph
provides:
11Article
persons
by
independent,
All
are
nature free and
and have certain natural
rights, among
enjoying
defending
and unalienable
which are those of
and
liberty,
acquiring, possessing,
protecting property,
life and
of
and
and of
pursuing
obtaining safety
happiness.
and
12
argument
theory
^Amicus’
is based on the
that the constitutional status of a
right
requires
greater
to life as fundamental
the State to demonstrate a
justification
imposing
punishment
before
death as
than it must show in other
concerning punishment.
argues
penological
decisions
Amicus
that none of the
justifications
support
penalty
satisfy
advanced to
the death
can
the State's
compelling
burden if the Constitution demands a
state interest:
deterrence
proven
significantly
by
imposition
not
to be
more advanced
of death than
by imprisonment,
revenge
sufficiently compelling justifica
alone is not a
tion.
exception
rejected by
With one
this claim has been
all other state courts.
Supreme
pre
1975 the Massachusetts
Judicial Court invalidated that state's
statute,
Gregg
penalty
holding
proven
death
that the state had not
that the
penalty
compelling
death
served a
state interest in the least restrictive manner.
O'Neal,
242,
(1975).
Commonwealth v.
Mass.
369
ence must be to the intent sentenc- Serrone, ing.” v. 95 supra, State N.J. at 27. question
The before us is the far narrow one more whether enactment of Act legitimate was a exercise of power, Legislature’s power and we must that this conclude legitimately punishment clearly was exercised unless the “is so and arbitrary without rational relation to offense” as to require Legislature this Court to find that has exceeded its “very Smith, discretion” in area. wide this See 58 State v. N.J. 202, (1971). 211 legislative history provides persuasive of the Act no Legislature’s purpose.
evidence of the We therefore will as- Legislature sume that one intended or more the well-rec- ognized penological purposes underlying all criminal sanctions: (both general specific), retribution, deterrence and rehabili- See, Ivan, e.g., 197, (1960). Quite tation. 33 State v. N.J. 199 intended, clearly only rehabilitation is not so deal we will with deterrence and retribution. apparently
There thought is a school of that contends that (punishment) retribution without more is justifiable peno not a See, logical goal. Anderson, e.g., People v. 6 supra, Cal.3d at 896, Cal.Rptr. 493 P.2d 100 at 168. While this Court on expressed occasion seems to have sympathy some with that view, Ivan, (“retribution see v. State N.J. at 199 is thesis”); not a Leggeadrini, favored v. State 75 N.J.
(1977), recently be, position, changed. more if such has it (1985) See v. Yarbough, (noting State 100 N.J. contemporary model sentencing Jersey New “based on — desert”), den., proportionality notions of cert. U.S. -, (1986); Roth, L.Ed.2d State (1984)(describing N.J. 345-51 demise of rehabilita tion prediction-of-future-dangerousness punish theories *46 ment reemergence “just the 1970s and the deserts” principle aim); a primary penological In re Trantino Parole Application, (1982) (requiring N.J. parole determi- nations to “punitive consideration of whether the as- include pects” satisfied). view, of sentence have been defendant’s inflict the penalty death for retributive reasons is “to devalue respect life” and “to abandon for the Society, individual.” however, apparently regards nonimposition of the death penalty in certain uphold instances as a failure to the value of life, namely, human extinguished by the life the murderer. The require Constitution does not society to share defendant’s view. perception Justice and the justice indispensable done are to the society. Legislature, survival of an ordered The speak- citizens, ing for its has determined that the justice demands of by executing are met those who Society’s murder. views here given primacy. must be agree
We thus
Supreme
with the United States
Court
penological
that retribution constitutes a valid
objective for the
penalty.
183-84,
death
Gregg Georgia, supra,
offensive conduct. This function but it is society rely legаl processes essential an ordered that asks its citizens to on help wrongs. rather than self to vindicate their at S. Ct. [Id. L.Ed.2d at 880.] authorities, others,13 These many demonstrate sufficient respectable support proposition for the that retribution is a legitimate penological goal Legislature punish- to allow fix goal ment with that in mind. argument accept about deterrence is different. All division,
its legitimacy penological goal; as a and it is a one, sharp empirical question. concerns an Does the death 1 3See, Berns, e.g., Capital Morality W. For Punishment: Crime and the Death (1979); (1983) Penalty Jacoby, Revenge (provid S. WildJustice: TheEvolution of ing argument generally although opposing an on behalf of retribution the death part ground punish on the curious that execution is an insufficient murderers); Act, Sentencing Art. Prefa ment for mass Model and Corrections (1978). tory Note *47 answers, reasons,
penalty deter murder? The the and the proliferate,14 up only statistics conflict and but add one Legislature reasonably conclusion: could find that murder, penalty just death deters as it could find that it does plethora analysis, not. Given of scientific “common-sense” explanations penalty’s logic, deterrent effect based on see, e.g., id. at L.Ed.2d at 881-82 (assuming penalty may “carefully that death deter contem- murders”), plated persuasive are important. neither nor Given evidence, conflicting say and inconclusive we cannot that a legislative penalty conclusion that the death acts as a deterrent clearly arbitrary so illegit- is and irrational as to constitute an power.15 imate exercise of respect arguments
We
of those who believe that a more
enlightened
penalty
legitimate
view that
death
serves no
penological purpose.
punishment,
In this area of crime and
however,
weigh competing
it is not our
arguments
function to
Marets,
enlightened.
and determine which is more
State v. Des
penalty
Ordinarily the kind of claim here asserted would be summari- ly spend dismissed. We would never more than a sentence responding that, instance, particu- to a defendant’s claim prison penological lar purpose term serves no for the crime involved, clearly lacking and indeed such a contention is so legal that it is substance almost never made. The Ehrlich, Capital Question 14See "The Deterrent Effect of Punishment: A Death,” (1975) (purporting Life and 65 Am.Econ.Rev. to establish a deter critics, Cole, impact) progeny e.g., Comparison rent and its Baldus & “A the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Punishment,” Pierce, (1975); Capital 85 YaleL.J. 170 Bowers & "The Illusion of Punishment," Capital Deterrence in Ehrlich’s on Isaac Research 85 Yale L.J. (1975); McGahey, Magic Theory, "Dr. Ehrlich’s Bullet: Economic Econo metrics, (1980). Penalty," Delinquency the Death 26 Crime & deterrence,” only "general ignore respect 15In this we refer "specific deterrence” of the individual. imprisonment here, death rather than is involved however. The requires difference this more extended Ultimately, treatment. however, even when it penalty, comes agree death we with Chief Justice question Weintraub that to the whether “[a]s *48 penalty end, the death serves a useful and its morality and fairness, these are matters solely legisla- which rest with the government.” tive branch of Forcella, supra, State v. 52 N.J. added). (emphasis at 293
Finally, defendant contends that the penalty death inherently discriminates on the basis of race and hence is unconstitution- al.16
We are well aware of
history
against
of discrimination
in
country
blacks
this
and of the role that
played
discrimination
in the decision in Furman to
down all then-existing death
strike
penalty statutes. See Furman v. Georgia, supra,
certain supply any other such as the but has failed to empirical regard. evidence of a constitutional violation in this contention, Supreme currently considering 17We note that the Court is Circuit, rejected by Georgia penalty the Eleventh that the death statute has applied racially discriminatory been in a fashion insofar as those who kill likely blacks are less to receive the death are than those who kill say any Suffice it to that this Court will receive evidence on will, addition, attempt this issue and that we monitor refuse, aspects application racial of the Act. We how- ever, preemptively theory Act on invalidate the that it inevitably applied racially discriminatory in a will fashion. capital punishment per hold that
We se a viola against tion of our state constitutional ban cruel and unusual punishments. Constitutionality
B. of N.J.S.A. 2C:ll-3 capital punishment Defendant contends if per that even is not unconstitutional, particular capital punishment se statute adopted by Legislature prohibition against violates the cruel punishments by failing and unusual sufficiently to narrow jury’s determining discretion in who will receive the death sentence. We will examine this contention first under the eighth amendment to the federal Constitution and then under *49 Constitution, our independent own state state constitutional analysis being, noted, appropriate as we have in this area.
To assess
federal
argument,
defendant’s
constitutional
we
Supreme
must
strug-
review
United States
Court’s difficult
gle
any system capital punishment
to ensure that
is “at once
principled
consistent and
but also humane and sensible to the
uniqueness
Oklahoma,
Eddings
of the individual.”
v.
455 U.S.
104, 110,
869, 874,
1,
(1982).
102
71 L.Ed.2d
8
S.Ct.
At one
time,
Supreme
futility
any
Court ridiculed the
require-
designed
ment
to limit
discretion in
cases:
To
before the fact those characteristics
of criminal homicides and their
identify
call for the death
which
and to
these characteris-
perpetrators
penalty,
express
language
sentencing
tics in
which can be
understood and
fairly
applied by
to be tasks which are
human
authority,
appear
beyond present
ability.
v.
[McGautha
U.S.
S.Ct.
91
California,
183, 204,
1454, 1465,
28 L.Ed.2d
(1971).]
711,
—
whites. See
106 S.Ct.
U.S. -,
3331,
Furman
muster,
constitutional
capital punishment statute must achieve
objectives:
two
limit
imposition
penalty
to what is assumed to be the small
group for
appropriate,
which is it
see
at
id.
92 S.Ct. at
(White, J.,
2d
L.Ed.
at 390
concurring), and ensure that
the limited class selected
penalty
for the
is chosen with rational
ity
consistency,
see id. at
L.Ed. 2d Georgia post- Court declared the penalty Furman death statute constitutional. The bifurcated 184
proceeding,
sentencing proceeding
the use in the
aggravat
ing
factors,
mitigating
jury
the instruction that the
must
aggravating
find
doubt,
at least one
factor beyond a reasonable
provisions
appellate
review were deemed to consti
guidance
jury’s
206-07,
tute sufficient
of the
discretion.
at
Id.
2940-41,
96
S.Ct.
At the same the Court made clear that there are also constitutional degree constraints on the to which a capital jury’s may discretion be controlled. The Court invalidat ed the penalty death statutes of North Carolina and Louisiana they provided because mandatory for a death sentence in cer tain upon jury’s circumstances return guilty of a verdict. Carolina, 280, Woodson v. North 428 U.S. 96 S.Ct. (1976); Louisiana,
L.Ed.2d 944
Roberts v.
428 U.S.
(1976).
By preventing
L.Ed.2d 974
“particu
larized consideration” of a convicted defendant’s character and
record, the mandatory
death
special
failed to meet the
reliability”
constitutional “need for
in meting out the sentence
Carolina,
death.
Woodson v. North
185 taught has us history juries inheres in such schemes: will convict, simply they not on by will act factors not set forth (in law), they statute effect will nullify the and the outcome will actually significantly be unpredictable more and less consistent under providing than that a statute measure some of 302-03, 2990, discretion. Id. at 96 49 at S.Ct. L.Ed.2d 959-60. expanded cases reliability
Later on the principle. The Court Ohio, supra, 586, 2954, in Lockett v. 438 98 U.S. S.Ct. 57 L.Ed. 973, provide 2d ruled death penalty may that a law for the any mitigating of concerning exclusion evidence the defendant’s or character record the circumstances of the offense. The ruling breadth of this enlarged Georgia, was v. Green 442 2150, (1979), 738 required U.S. S.Ct. L.Ed.2d which statement, evidence, mitigating the admission a offered as have Georgia’s hearsay would been excluded under rule. Two principles emerge from the Court’s decisions requiring jury’s since Furman discretion be impose channeled: decisions to the death sentence be (in consistency consistent the sense of with other decisions to impose death) (in or not impose they and that reliable deserving punish sense that the individual is of the defendant ment). conflicting, principles consistency Sometimes the two reliability accuracy reflect the increased demands of fairness, dimension, rising implementa to constitutional in the unique tion of this criminal sanction. fully
We that the Act conforms with the believe requirements United constitutional set forth States Supreme substantially patterned Court. Our statute is on the Georgia upheld Stephens, statute later in Gregg and Zant v. supra, 462 235. As the U.S. L.Ed.2d noted, Court in Gregg the fact that death statute general along Georgia constructed act is not in lines guarantee validity; and of itself a constitution constitutional necessity. statutory system Gregg al review each remains a supra, 428 at 195 & n. at 2935 n. Georgia, U.S. S. Ct. & Nevertheless, at 887 n. 46. the Act contains L.Ed.2d & *52 narrowing all of the essential features: a of the class of death trial, eligibles, requirement jury that the find a bifurcated aggravating weigh aggravating least factor and then one factors, against mitigating mitigating factors a “catch-all” any mitigating factor that will allow the introduction of evi dence relevant to the defendant’s character or record or to the offense, mandatory circumstances of the no sentence of death offense, any provision for appellate by and a review this Court.18 additionally provides procedural protec-
The statute several required tions for the defendant that are not under the constitu- analysis Supreme tional Court. The must find that aggravating beyond doubt, factors exist a reasonable and that they outweigh mitigating beyond factors a reasonable doubt. review, only mandatory appellate This Court not has but also proportionality upon the authorization to conduct review c(3)(c), request. providing defendant’s And Section penalty proceeding event of deadlock at the the court must impose imprisonment, a sentence of assures to some extent that (as deadlock) by cases doubtful indicated will not result in death, lending support consistency further to the аnd reliability statutory scheme. claims, however,
Defendant that our statute is constitu tionally exempt infirm in its initial any failure to murderers (with potential subjection from penalty excep to the death by tion of those did not who cause death their own conduct or so). pay someone to do Jersey’s prior He notes that under New specifying 18Defendant contends that the Act must fail for not this Court’s ensuring standard of review and therefore not that our review will be “mean- ingful.’’ disagree. Legislature, despite We We believe that the its lack of specificity, fully power intended this Court to exercise its of review in accord- standards, applicable ance with constitutional and we shall not hesitate to do so. law, only death those defendants convicted of deliberate premeditated murder felony or murder subject were to a death sentence. We will assume that the class of murderers who ingly19 purposely have caused death hand, their own know paid so, or have larger someone else to do than those formerly encompassed first-degree within murder in this state. however, comparison, is irrelevant: there is no constitution that, requirement al stage (at at the first of narrowing guilt phase), the class covered must be smaller than the class ulti mately subject to the death penalty under a prior state’s stat Furthermore, ute. absolutely nothing there is any United Supreme suggest States Court case eligible the death may class precisely Jersey be defined as New has defined it.20 2C:2-2(b), *53 culpability:
19Under N.J.S.A. the Code defines these levels of (1) Purposely. person purposely respect A acts with to the nature of his object engage conduct or a result thereof if it is his conscious in conduct person purposely of that nature or to cause such a result. A acts with respect to attendant circumstances if he is aware of the existence of such hopes they purpose,” circumstances or he believes or that exist. "With "designed,” design" equivalent meaning. "with or terms have the same (2) Knowingly. person knowingly respect A acts with to the nature of his conduct or the attendant circumstances if he is aware that his conduct nature, exist, high is of that or that such circumstances or he is aware of a probability person knowingly respect of their existence. A acts with to a practically result of his conduct if he is aware that it is certain that his “Knowing,” knowledge” equiva- conduct will cause such a result. "with or meaning. lent terms have the same "[bjecause 20Defendant claims that [murder] most defendants fall within at factor, aggravating duty least one the statute fails in its to limit the number of eligible penalty.” authority defendants for the death We find no for the proposition “duty that there is a to limit” the number of individuals who are eligible penalty. only "duty by for the death The to limit” established Supreme United States Court concerns the class of offenders that could be subjected penalty: apply to the death a state must "tailor and its law in a arbitrary capricious penal- manner that avoids the infliction of the death 420, 428, 1759, 1764, ty.” Godfrey Georgia, 446 U.S. 100 S.Ct. 64 L.Ed.2d (1980). Moreover, statutory aggravating defendant confuses the factors enumerated by legislature eligibility." eight with notions of "death He stresses that the Nor is the further narrowing subject to constitutional objection. any It is true that aggravating may factor alone death, lead to one aggravating factor—that the mur conjunction der was committed in robbery, rape, with a burgla arson, ry, kidnapping (Sec. or c(4)(g))—includes very substan portion tial of all ultimately question murders. But re mains, jury’s is the sufficiently guided? discretion Our conclu sion is that it is. nothing any There is of the cases that suggests such a classification is invalid. capable It is of fairly definition, thereby exact assuring consistency, and will ulti mately by be tested the almost limitless mitigat introduction of factors, ing thereby tending reliability. to assure
There is one class of murder in which a factor defines eligibility both death as well as penalty selection for the itself. The defendant pays who another knowing to commit purposeful (Sec. murder and is eligible c) will, therefore death proof without any (since further aggravating factor such payment aggravating factor, itself is an c(4)(e)), subject Sec. penalty to the death if aggravating outweighs factor any mitigating factors. nothing But there is whatsoever unconsti tutional about that. The definition of the circumstance is precise, and penalty therefor consistent.21 aggravating persons eligible factors "fail to define a narrow class of for death.” argument by unambiguous This language is undermined of the statute. eligibility a(l)-(2) Price, Death is defined Section and Section c. See State v. (Law Div.1984). N.J.Super. aggravating factors outlined in c(4)(a)-(h) only eligibility Section are considered after the death determination aggravating (or factors) has been proven made. Once an factor has been doubt, beyond if, if, imposed only reasonable the death will be *54 (or factors) aggravating outweighs any mitigating factor factor or factors beyond a reasonable doubt. argues aggravating vague 21Defendant also that the Act's factors are overbroad, they rationally in that fail to define a class of murder for which the penalty sought. factors, only aggravating death could be We note that two murder," previously c(4)(a), "[t]he defendant has been convicted of Sec. vile, outrageously wantonly that "[t]he murder was or horrible or inhuman in torture, mind, depravity that it aggravated battery involved of or an to the
189
victim,”
c(4)(c),
respect
have been found with
to the murder Ramseur
Sec.
whole,
defendant
the statute fails
committed. Because
asserts that "taken as a
die,”
process
determining
a rational
who will
and because
to establish
face,
is
on its
see State v.
defendant's claim is that the statute
unconstitutional
200,
Saunders,
(1977),
N.J.
208-10
we shall review defendant’s contentions
75
(We
c(4)(c) separately.)
concerning
aggravating factors.
treat Section
all the
strong
aggravating
by
Legislature
We conclude that the
factors established
reasonably
ly
principle
aggravating
adhere to the
that an
circumstance “must
compared
justify
imposition
of a more severe sentence on the defendant
877,
guilty
Stephens, supra,
of murder.” Zant v.
We hold that the Act is constitutional under the to the amendment federal Constitution. conclude, furthermore, Act is under
We that the valid I, paragraph 12 Jersey read Article the New Constitution. We consistency mandating goals as also of of our Constitution reliability capital punishment. in the administration and, appro provides thus an additional where state Constitution expansive protections against the priate, more source of arbi trary imposition penalty. and nonindividualized of the death As dissenting colleague demonstrated, post has at 351- our see Supreme has years in recent States Court United departed vigorous from the of these enforcement constitutional particularly principle consistency. principles, We are not obliged reasoning to follow the of all these United States Supreme interpreting Court decisions in our own state constitu protections, tional nor do we intend to. Supreme has
But the fact that
Court
faltered
its
not,
consistency
reliability
pursuit of
does
the dissent
goals
“fundamentally
are
suggests, mean that the
themselves
contradictory—perhaps unattainable.”
Post
347. The
stranger
jurispru-
no
to our
concept
“guided
discretion” is
Indeed,
sentencing
justice system’s
policies
criminal
dence.
our
penalty—are based on it.
generally—apart from the death
See
Roth,
In the context of the death
at 358.
State
N.J.
penalty,
accuracy
where the demands for fairness and
are
heightened,
principles
consistency
reliability
rise to
constitutional dimension. While there is an undeniable measure
of “doctrinal
(see
tension” between these principles
post at 339-
340),
agree
we cannot
that “doctrinal tension” is a basis for
depriving society
ability
to ordain what it believes to be
appropriate
sanction for murder. Here as in numerous
contexts,
other
this Court must strike' the best balance we can
provision),
similar
cert. den. sub nom. Tichnell v. State,
466 U.S.
104 S.Ct.
(1984).
2374,
We must therefore independent arrive at an determination under our Constitution that the Act contains sufficient safe guards prevent arbitrary both and nonindividualized inflic penalty, tion of the death whether or not the United States Supreme require safeguards Court would those under the fed that, eral Constitution. In this connection note we with one exception, none of the Supreme United States Court cases criticized the validity dissent concerned the facial of a death penalty Rather, statute. those cases involved claims of error specific to the death imposed sentence on the in defendant volved. Even assuming that we would not follow these cases law, as a matter of state they bearing constitutional no have on a facial attack on exception the Act itself. The one is Zant v. Stephens, supra, 462 U.S. L.Ed.2d in which the Court Georgia’s penalty held that death statute failing guide was not for jury’s defective further the discre point jury tion after the at which the aggravating found factors to exist. But whether or not this Court would follow Zant is irrelevant, Jersey penalty for the New death statute does fact, dissenting opinion recognize necessity 22In itself seems to legitimacy guided capital sentencing discretion in determinations. It also "serv[ing] principles reads our state Constitution as at a minimum to affirm the consistency originally Gregg" [of and individualization] voiced in Furman and 370)—a are, interpretation (post puzzling principles if those at as the dissent Moreover, 351). suggests, impossible (post to reconcile at the dissent dis- any penalty perse claims reliance on the view that the death is unconstitutional (post 383-384). at only ways But there are three to structure a (1) discretion, punishment system: (2) jury may given total no discre- tion, (3) guided Supreme discretion. The United States Court has declared unconstitutional, options binding that the first two are a determination on all simultaneously attempts acknowledge state courts. Yet the dissent both to that argue per the death does not se violate the state Constitution and to that system providing guided only permissible option for under discretion—the the federal Constitution—does violate the state Constitution. substantially guide the jury’s stage by requir- discretion this at ing a finding aggravating outweigh that mitigating factors beyond factors a reasonable doubt. dissent, however,
The require would more than a bifurcated trial, class, a narrowing death-eligible requirement jury factor, aggravating find at least require- one a further ment that aggravating find the outweigh factors to mitigating doubt, beyond factors a reasonable a “catch-all” factor, mitigating review, provision and a appellate all of which are found the Act. dissent would require that stake, “[wjhere procedures a life used to take life consistency must maximize both and individual consideration sentencing, and thus minimize irrаtionality.” arbitrariness and Post at 370. *57 are quite suggested
We not sure is what meant this procedural directive to protections “maximize” in capital sen- tencing. suggestion If that is defendants are enti- perfection, to consistent, tled to totally accurate and reliable procedures, only obviously any not this penalty Act but death Society act would be required unconstitutional. has never been to impossible conform to such an standard. While the dissent explicitly say penalty declines to that the death is unconstitu- per Jersey Constitution, tional se under New apparently it accomplish indirectly would by establishing same result that, requirements though unspecified, could never be met. If, hand, suggestion on the other more narrow one the Act that must contain certain additional measures that it currently does not contain in order to assure the consistent and imposition of the penalty, reliable death we do not that believe dissenting colleague any our has identified such measures. The dissent advances five of criticisms the Act: that the definition broad, murder is aggravating of too that the are factors too vague, that “death-eligibility” determinations of are simultaneously, procedure “death-selection” made that no prosecutorial included, of for review discretion is that proportionality required only review is where the defendant requests it. Post at simply 384. These last are two criticisms premature. many We share of the dissent’s concerns with respect controlling prosecutorial to the need for discretion and importance proportionality review even the absence request by say in this defendant. Suffice it to case presented showing prosecu- we have not been with a claim or early stage torial in this Act abuse of the administration review, unwilling request proportionality or with a defendant arise, they that we will consider these issues if and when that we decline invalidate the its face on Act on these grounds. great significance
The dissent finds and constitutional unfair- Act, penalty ness the fact that the like the death statutes of states,23 death-eligible several other narrows the class at the sentencing phase guilt phase. rather than at the We note first stating entirely that the dissent is not accurate that the Act encompasses effect... all murders.” Post at 387. There is “[i]n murderers, very large namely, class of those who are accom- a felo- commission of during the who cause death plices persons Act c of the ny, penalty. Section subject who are death to the imposed only permits the death to be on those who “by pay another to commit murder own conduct” or who [their] provide degree of do so. Thus the Act does for a certain narrowing guilt phase. at the many significantly undercuts the just
This is one of facts that argument expands the Act the class of murderers dissent’s *58 compared prior the as to this state’s subject to death only first-degree capital punishment subjected law. That law felony-murder it penalty, murderers to the death but defined murder; not first-degree felony-murderers and under it who did indeed, participate any nor participate, who had no intent (Smith-Hurd (1982); 23See Ga.Code Ann. 38, § 16-5-1 Ill.Ann.Stat. ch. 9-1 § 45-5-102(1985); Supp.1984); 16-3-10,-20 Ann. § § Mont.Code Ann. S.C.Code (1962 Supp.1986). & Law. Co-op. 194 participate,
reason to
the homicidal act
could
nevertheless
be
See,
Bunk,
e.g.,
were sentenced to death.
v.
4
State
N.J.
461,
den.,
839,
25,
(1950);
cert.
340
71
U.S.
S.Ct.
The dissent also assumes a clearcut distinction categories first-degree between the murder second-de gree under prior murder our law. Such a clearcut distinction did not in fact exist. The has the dissent called element of “deliberation” the “crucial difference” the degrees between two of murder. Yet our consistently cases held that for delibera found, particular period tion to no elapsed time need have between the formation of plan the defendant’s homicidal See, plan. e.g., Coleman, execution that State v. 46 N.J. 16, (1965), den., 950, 1210, 45 cert. 383 86 16 U.S. S.Ct. L.Ed.2d (1966); Walker, 208, 218, 212 den., State v. 37 N.J. cert. 371 850, 89, (1962). standard, U.S. 83 S.Ct. 9 86 L.Ed.2d this Under undoubtedly it was murder rare whose facts could not support finding first-degree a second-degree either mur der, and in fact our many cases indicate if not most prosecutions murder was instructed on both theories. See, 454, e.g., (1967); v. Reyes, State 50 N.J. State v. Bindhammer, (1965) (“Though N.J. the testimony relied on by might justified defendant have degree, a lesser testimony clearly relied on State justified finding degree, of first for under settled law it necessary is not any particular period elapse of time between the formation of purpose execution.”); to kill and its Wynn, State v. 21 N.J. (1956).
Moreover, only bodily while intent to do serious harm could formerly support first-degree charge, murder may it similarly support be insufficient a capital today sentence the constitutionally required because of culpability standards regarding intent to defendant’s kill. Enmund See Florida, supra, U.S. L.Ed.2d 1140. *59 course, respect subject in one the class of murderers to Of significantly greater prior today death is than under penalty the potential capital prevents The Act defendants from avoid- law. by capital sentencing pleading guilty to the ing proceeding c(l); charge. Wright, N.J.Super. Sec. v. murder see State (Law Div.1984). pleas were Such non vult with effect 1972, however, prior the In this permissible under statute. penalty precisely the because it invalidated death law Court (and thereby compel) forgo a allowed tended to defendants to guilt in order plead trial on and vult to avoid death. State non Funicello, the supra, 60 60. dissent’s reliance on N.J. “narrowing” plea non vult in the pre-Funicello function given ironic death-eligibles prior under law is class Act purpose demonstrating that the current dissent’s overall applied. pr avail- arbitrarily For while the e-Funicello will plea number ability undoubtedly vult decreased the the non wholly so in subject penalty, to death it did of murderers fashion, anything else illegitimate perhaps and as much as arbitrary infliction of the death contributed to Georgia. condemned in Furman v. short, for the definition of preference the dissent’s Although inexplicable. is prior
murder contained our statute may confidently assume that empirical lacking, we evidence penalty today is not subject class of murderers death (excluding, under law as greater prior than it was substantially must, plea). More of the non vult we think we role law’s the current think it undeniable that importantly, we relating murder, provisions conjunction with its definition of prior than far fair pleas, make this statute more helps arbitrary application of law, likely in the to result far less death-eligible narrowing penalty. A further the death not, in sentencing proposed the dissent would before class degree more any significant opinion, make the Act our its deprive society of All it do is fundamentally fair. would deter murder. right punish power *60 ground suggesting The dissent on no is firmer that the aggravating single proceeding “use of a factors both to the as define murder a offense and to determine the imposition way of the death sentence is fair to adminis [not] ter the ultimate sanction death.” Post at 391. As the out, points that Jersey dissent the fact the New statute re juries weigh quires aggravating against mitigating to factors is an it important Georgia factors distinction between and the Georgia require statute. The statute does not contain such a ment; gives juries complete it discretion over the life-or-death jury aggra decision once the has at determined that least one vating factor In Stephens, supra, exists. Zant v. 462 U.S. Supreme 103 S.Ct. the L.Ed.2d Court the held that Georgia failure the aggravating statute allow factors to any play guiding jury’s discretion, role apart the from its narrowing function of death-eligibles, the class of did not violate the Constitution. dissenting colleague Jersey
Our hold the New would Act un- provides constitutional it because additional restraint on petitioner argued discretion that the in Zant was constitu- tionally say, necessary. argues That is to the dissent that one important provisions the Act’s most assuring that the applied death consistently is is in fact The un fair. given that perspective, reason is “from the defendant’s imposed sentence is as and when the is offense defined.” Post at The dissent sets 393. forth proposition this if not, element of unfairness is self-evident. It is least us. view, statutorily weighing our mandated process does promote arbitrary application not penalty; of the death on contrary, protects against it it. The dissent’s final aggravating contention—that the factors vague overbroad—really are reduces to claim one of factors, c(4)(c), aggravating vague Section and overbroad. position in construing dissent’s is that this factor we in Jersey make New will the same other mistakes courts have made, no matter how aware of those errors how determined in the follow- this contention them. We deal with to make that, aggra- assuming that this only note here We ing section. and can be consist- vagueness of its vating factor can be freed infirmity in the mere ently applied, we find no constitutional class of increase the its inclusion in the Act will fact that choice society’s That is subject penalty. to the death murderers make, judiciary’s. not the federal Constitutions under the state and We conclude sufficiently guides juries’ penalty act Jersey’s New death system that capital punishment so as to achieve a discretion will class, and selects those who and that it defines narrows *61 ultimately to the sentencing proceeding and subject to the on reliability. The attack penalty consistency and death with fail. constitutionality respect in this must its 2C:ll-3c(4)(c) Constitutionality of N.J.S.A. C. that c(4)(c) aggravating factors lists as one of the
Section
vile,
or
wantonly
horrible
outrageously or
murder was
“[t]he
mind,
torture,
or an
depravity inhuman in that it involved
challenges this
Defendant
battery to the victim.”
aggravated
unconstitutional,
argues that no
and
being facially
factor as
claim is
This
can render it constitutional.
limiting construction
amendments
eighth and fourteenth
on the
based both
challenge
eighth
The
amendment
United States Constitution.
permits
it
imprecise because
aggravating factor is
that this
is
in an
aggravating
the
factor
existence of
juries to find the
manner,
fails to assure
and therefore
capricious
arbitrary and
required
Furman
“channeling”
jury’s
the
discretion
the
346;
33 L.Ed.2d
supra, 408
Georgia,
v.
U.S.
c(4)(c)
sois
challenge is that Section
the fourteenth amendment
law,
vague criminal
impermissibly
to amount to an
imprecise as
will
which
allow for
arbitrary application
standardless
and
by prosecutors
the law
juries.24
c(4)(c) of
Section
the Act
its
portion
is
most troublesome
important.
one
its most
provision
The
is troublesome be-
of its
vagueness.
cause
obvious
Merely quoting it
the
is
best
proof of
important
that
fact.
provision
The
is
because this
vagueness probably accurately expresses
society’s
wish
limit
penalty
death
only
the
yet
certain
murderers
reflects
society’s inability to
precisely
trouble,
define
limit.25 The
Jersey
24While defendant asserts similar violations of
New
Constitution
I,
(Article
13),
under,
paragraphs
analysis
1 and
believe
we
that the
and the
of,
effect
both the federal and state
Constitutions
this connection are
identical.
thirty-seven
murder,
provide
penalty
25Of
states that
for the death
twenty-four
provisions
c(4)(c).
provisions
of them have
similar to Section
The
attempt
likely
to make it more
receive
defendant
the death
usual,
ordinary,
set
when
murder is
"off from the
the normal sort of
State,
typical
Hopkinson
homicide
murder case.”
664 P.2d at
provisions
73. These
use different terms to describe this class of murderers
deserving
many
stating
“especially
of death with
of them
that the murder was
heinous,
cruel,”
vile,
inhuman,”
"outrageously
atrocious or
was
wanton or
or
Rosen,
"depravity
‘Especially
Aggravat
involved
of mind." See
"The
Heinous’
ing
Capital
Standard,"
Circumstance in
Cases—The Standardless
64 N.C.L.Rev.
(1986).
n. 7
states,
provision
copied
adapted
In most of
from Model Penal
210.6(c)(3)(h)
1962).
(Proposed
language
§
Code
Official Draft
there is
*62
heinous,
cruel,
"especially
manifesting
the murder was
or
atrocious
Court,
Florida,
exceptional depravity.”
Supreme
After the
in
v.
Proffitt
242,
2960,
913, seemingly approved
428 U.S.
96 S.Ct.
49 L.Ed.2d
the Florida
Supreme
limiting
provision
Court’s
of
construction
the Code’s
"the
to
con
victim,"
pitiless
unnecessarily
scienceless or
crime which is
torturous to the
Dixon,
1,
(Fla.1973),
Florida,
State v.
283
2d
cert.
So.
9
den. sub nom. Hunter v.
943,
1950,
(1974),
adopted
416 U.S.
94 S.Ct.
199 therefore, Legislature’s language, the but originates with sentencing provide that we each requirement the with guidance of the specific as to the nature crimes advance with provision allowing the without the satisfy that will statute act of That construction оf this encompass every murder. our falling murders outside the death provision may result some is society may have intended otherwise a conse- when of constitutional command that criminal laws con- quence the precision, command on form to certain standard of based of notions fairness. fundamental introductory provision the
Quite clearly language the vile, (“[t]he wantonly or or outrageously murder was horrible inhuman”) anyone’s ability remedy, beyond is indefinite by Legislature, recognized so which at presumably was limiting explicitly portion part tached to that of the section mind, torture, depravity aggrava or an “in that it involved added). (Emphasis Interpreta victim battery ted to the ...” throughout give courts effect to this tions various nation limitation, by construing provision in a ultimately the entire portion being second the essential manner that results 339, State, 856, finding. v. cert. Hance Ga. S.E.2d See 796, (1980); den., 66 L.Ed.2d U.S. Commonwealth, 44-45 v. 221 Va. 273 S.E.2d Turner (1980), den., 101 S.Ct. 68 L.Ed.2d cert. U.S. (1981) effect, although require indepen two . In these courts do (1) wantonly or (that “outrageously is findings dent offense torture, inhuman,” (2) depravity vile, horrible or involves construction, part battery), in first aggravated applying nugatory. resultant provision is rendered construc the murder aggravating factor exists when tion mind, torture, battery aggravated or an depravity “involved courts, court in such as the trial State to the victim.” Some however, 49-50, Biegenwald, supra, 106 have read N.J. cases under clarifications makes decided the statutes. The those similarity form. in cases decided under another one form of the statute persuasive *63 200 introductory language modifying part the second of the required torture,
provision and have that the battery depravi- or ty being vile, must warrant a characterization of “wantonly or horrible language inhuman.” We believe that the of the itself, intent, provision its clear and constitutional considera- support tions all part construction that does not treat the first provision (“was outrageously vile, of wantonly or horrible inhuman”) independent requirement as either an qualita- or a tive modification of what follows. obvious, not quite fairly
While
so
it
clear
second
portion
c(4)(c)
of Section
pass
will also not
constitutional muster
narrowing
unless a
construction is supplied. The United States
Supreme Court’s approval
Georgia
narrowing
court’s
construction
provision
of both sections of the
in Gregg v.
Georgia, supra,
201-02,
2938,
428
atU.S.
This
obligation
Court’s
imprecise
to narrow
statutory language in order to render it
is beyond
constitutional
See,
question.
e.g.,
Kimmelman,
Town Tobacconist v.
94 N.J.
(1983);
85
Jersey
New
State Chamber
Commerce v. New
Jersey
Comm’n,
(1980);
Election Law
57
N.J.
Enforcement
Borough
Collingswood
(1975),
Ringgold,
v.
app.
N.J.
dism.,
(1976);
U.S.
96 S.Ct.
What, then,
Legislature
did the
question
intend? The
is not
suggest
meant to
particular constitutionally permissible
that a
part
construction was
of that
only
intent. We search
for those
general
indications that
adopt
will enable us to
a construction
“vagueness" that ren
the difference between
in this connection
27We note
action,
Lee,
guide
see State v.
96
to lawful
invalid as a citizen’s
ders a statute
(1979),
“vagueness”
(1984);
Lashinsky,
that
which is identical
to that of
must be inter-
preted in
with
accordance
adopted by
construction
Georgia Supreme Court.
Its reasoning
support
of this
proposition
compelling:
unquestionably,
as demonstrated
the comments of the bill’s chief sponsor29 and the Director of
Justice,30
Division
Criminal
the drafters
of the Act
*65
sought
design
to
pass
a statute that would
constitutional mus-
and
keenly
ter
were
aware
Supreme
of the United States
attempt
narrowing
28Whether our
construction should
to be final is a
intended,
finality
If
difficult
issue.
is
there is the obvious risk that
the
conclude,
may
that
later
definition will exclude cases
we
after further reflec-
tion,
however,
clearly
narrowing,
were
intended to be
A
that
included.
is
explicitly subject
tendency
modification
"unforeseen" cases arise has a
arbitrary
jury.
penalty by
too
not
dissimilar from the
infliction of the death
the
know,
Court,
One would not
until
case
this
reached
whether its circumstanc-
factor,
properly triggered
might
accurately
es
this
and our determination
relatively
viewed as an exercise of
uncontrolled discretion
decide who shall
predictability
live and
die.
the
who shall
We believe that
need for
and
now,
consistency
require
the
and
demands of fairness
define
that we
the factor
If,
result,
case, more,
and
once
for all.
as a
we miss a
because we could not
it,
Legislature
foresee
the
can correct that error for future cases. That a
more,
prison
thirty years,
perhaps
defendant will be
at least
when he
preferable
executing
should have been executed is
under
defendant
suggest
circumstances that
that the
was
than
sentence
determined with less
guidance
appropriateness.
clear
as to its
Russo, sponsor
29Senator
legislation,
of the
Judiciary
said in the
Hearings
Committee
on S. 112 that the bill was "drafted in accordance with the
Supreme
guidelines
United States
capital punishment
Court
that render
consti
Supreme
tutional in the
Capital
Court case that so declared."
Punishment Act:
Hearings
Comm.,
on S. 112
Judiciary
Before
N.J.
Leg.,
the
Senate
200th
2nd
(1982). Although
name,
Sess.
by
Supreme
identified
the
Court case
Gregg Georgia, supra,
153,
referred to
2909,
v.
428 U.S.
96 S.Ct.
49 L.Ed.2d
859.
Committee,
hearings
Judiciary
public
30At
Edwin
before
Senate
Director
stated,
c(4)(c):
referring
Stier
to Section
"We tried to make that conform to the
subject."
Hearings
Capital
law on
Act:
on
most recent case
Punishment
Comm.,
(1982).
Leg.,
Judiciary
2nd
S.112 Before the N.J. Senate
200th
Sess.
approving Georgia’s
Court’s decisions
provi
construction of its
Gregg Georgia, supra,
See
sion.
428 U.S.
96 S. Ct.
859;
Godfrey
v. Georgia,
L.Ed.2d
U.S.
We
that in
including
issue,
particular provision
Legislature
adopt Georgia’s
intended to
provision.
construction of this
We
say
First,
foremost,
this for several reasons.
we believe
Jersey Legislature
the New
wanted assurance that the Act was
Georgia’s
constitutional.
constitutionally ap-
Since
statute was
proved,
Legislature
copied
it for that
reason and that
reason alone.
It is
holding by
true that the
the United States
Supreme
depended
narrowing
aggravating
Court
on a
here,
factor
quite
any narrowing
at issue
but it was
clear that
provided
requisite degree
pass
definiteness would
particular
scrutiny.
constitutional
narrowing effected at
point by
Georgia Supreme
(and
“approved” by
Court31
particular narrowing
“approved” by
31The
construction
the United States
430-31,
Supreme
Gregg
Godfrey, supra,
Court in
Furthermore, we Legislature cannot believe that the Jersey intended a provision New construction of this would only preceded limit it to by physical murders the infliction of pain. language provision undeniably for a calls battery, psychological depravity as well as sexual and abuse and to be manifest by brutality Although Georgia ed death. after 268 S.E.2A 345-46. Hance standard, away physical injury moved from the serious there is no indication Legislature adopt specific by this intended to formula favored Georgia provision passed any court at time the was here more than the Legislature adopt specific expressly intended construction Harris/Blake approved Supreme the United States Court.
205 interpretation, interpretation easily broader and that can requirements. to accommodated constitutional is not It tena instance, ble, Legislature to willingness for attribute to the to death penalty psychologi shield from the murderers who inflict cal their torture on victims death condemning before while brutality physical those whose is to the of limitеd infliction pain. policies copying Where the of the state are not reflected in the original jurisdiction, construction statute adopting is not by state bound such Eng constructions. See State, 541, berg (Wyo.) (although 686 P.2d copying 552 penalty statute, Wyoming Florida’s death need not follow Flor . ida’s application where policies diverge), statute state den., 577, cert. (1984). 469 U.S. 83 516 S.Ct. L.Ed.2d Legislature
We therefore conclude that while the in tended to obtain benefits of the constitutional validation of substantially Georgia provision, identical it did intend to what, us, appears assume the an unduly burdens to to be restrictive construction.
It is instructive refer to the various constructions this provision endeavors, in other states. results of these however, provide examples often better not followed. We list developed some of the constructions that courts other have apply statutory attempt constitutionally. their similar factors In defining “aggravated battery” purpose, an this courts battery have as a defined it which occurs addition to or death, independently see, e.g., force that caused Smith v. Commonwealth, (1978) (ag Va. S.E.2d gravated battery quantitatively is one qualitatively “which culpable necessary accomplish is more than the an minimum murder”), den., act of cert. U.S. L.Ed. (1979) given why, despite 2d 1074 reason is fact that [no long-lasting pain intentionally severe and inflicted murderer, if the it is considered less horrible blows were to, did, pain intended to cause that were intended also *68 206 death];32 “aggravated in other states an battery”
result
“unnecessary pain,”
the act
presumably
occurs where
caused
meaning
pain
“necessary”
accomplish
excess of what was
murder,
Sonnier,
650,
(La.
see State v.
402 So. 2d
658-60
1981),
den.,
1229,
3571,
463
103
cert.
U.S.
ant’s intent. ranking our Code’s by degree of crimes places those crimes committed with intentional conduct as the crime, highest degree of for which the defendant is most concern, severely punished. Society’s concern, the community’s Legislature’s concern, punish is to harshly most those who harm, pain, intend inflict suffering—in addition to intending death. not, however,
We would include within coverage of Sec- c(4)(c) tion the murder in which the pain victim suffered no despite fact i.e., murderer’s intention pain, to inflict which the unexpectedly victim instantaneously. died While (the both defendants intending pain ones examples) these two are, concededly, equally culpable, we practical conclude as a matter that particular absent this application limit on the c(4)(c) (i.e., Section no death pain where no was suf- despite fered it), the murderer’s intent to inflict there would be many possible presentations too prosecution, each con- ceivably turning on theoretical reconstructions of intent. Be- proof support c(4)(c) cause that will a Section finding, as we here, shall already circumstantial, construe it largely *70 permit speculation the added proof as to of pain intent to inflict pain when no might was inflicted impermissibly allow discre- tionary findings and death sentences based on the slimmest of evidence. by including
We therefore start
c(4)(c)
within Section
to,
class of murders in which defendant intended
and did in
fact, cause
physical
extreme
or
suffering—in
mental
addition to
death.34 The state of mind
require corresponds
that we
to our
Thus,
“purposeful”
Code’s
definition.
the extreme physical or
suffering
mental
must
precisely
be
what defendant wanted to
statutory provision
conclude that the amended
does no more than conform to
c(4)(c).
our construction of Section
party
34Thisincludes cases where defendant intended to cause a third
who is
State,
not the victim to suffer. See Strickland v.
247 Ga.
275 S.E.2d
den.,
(1981).
cert.
454 U.S.
102 S.Ct.
We conclude that of identi fies a concern distinct from that discussed above. These words society’s mark punish severely concern to who those murder purpose or meaning distinguished without as from those who (albeit purpose completely unjustified murder purpose). greatest This term isolates conduct that causes the abhorrence society, and terror within an because ordered citizens cannot protect either fact in perception from themselves these random acts of violence. The killer who does it because he it, perhaps better, likes even it him because makes feel who reason, bystanders kills without who kills and children others helplessness36 whose indicate would that there was no reason murder, depravity evinces what we define as of mind.37 note, however, aggravating 35We that this factor does not exist when defend- defendant, i.e., "knowing” "purposeful,” ant’s state of mind was but not when although "practically suffering physical certain” that extreme or mental would occur, object.” not in have did fact that result as his “conscious See N.J.S.A. 2C:2-2b(l) (2), defining “knowingly.” “purposely" This limitation provides aggravating apply only further factor assurance this will to the culpable most murderer. that, itself, helplessness is 36The victim not the factor allows a rather, finding depravity; usually of it demonstrates the senselessness of the killing. body may "depravity 37Mutilation of a after death indicative mind.” See, State, e.g., Hance v. Ga. S.E.2d at The dissent 346. points approval depravity this after death mutilation evidence of manipulable sufficiently multiple concludes that this construction in a limiting any accompanied by wound case so as to defeat definition murder *71 aggravated battery by torture. claim made is that or The dissent where bodily proved, do intent to serious harm before death cannot be if the moment indefinite, sufficiently is be death the wounds will considered “mutilation” justification may They Troublesome issues of arise. will be troubling judgments as are other policy answered moral and way society that sometimes find their to the is courts. What here, however, complete concerned with is the absence—from society’s point any recognizable view—of motivations ordinarily explain or emotions that The definition murder. vague. danger this kind of murder is not There is not a here distinguish that it will be difficult to those between who fall depraved under our definition of and those who do not. clarify
To further the limits of this classification we objection refer by to an made the dissent to this construction of depravity. The dissent here mischaracterizes our definition of depravity. apparent purpose prove is to the construction adopt manipulation we is vulnerable to that would undo our depravity merely killing effort narrow it. Were a without contended, warning agree as we would that the definition However, nothing suggests fails. in our definition that a killing warning by committed without a would itself constitute depravity. A warning murder committed without a is not at all lacking motive, recognizable same one a because warn ing killing. has little to do with the reason or lack thereof for addition, part argument—that the second of the dissent’s a preceded by warning murder a to the victim would render it accompanied by aggravated one battery torture—ignores our requirement killing accompanied by that the physi be extreme suffering, cal or suffering intentionally mental and that such inflicted, inflicted, purposely specific being purpose to cause itself, prior By victim to suffer to death. the victim’s depravity. and thus indicative of Our determination that after death mutila- act, however, may depraved requires tion be a that the murderer intend to do physical damage corpse to a and that when that harm is done the murderer specifically upon corpse. Depravity have intended that it be done is not distinguished aggravated battery finely from and torture drawn line Instead, distinguished by that is the moment of death. it is the distinct mental intentionally damage body state that causes a murderer he believes is longer being. no a live human *72 awareness of imminent death is not satisfy sufficient to Section c(4)(c). The mere fact that a preceded murder is by a warning to the victim requirement would not fulfill our that the murder- to, er intends or has as explicit to, his purpose inflict severe psychological (or physical) pain prior death; to to constitute torture battery test, or a under our the murderer must want the pain. victim to suffer that
Therefore, depending facts, on the jury should charged—without quoting aggravat statute—that this ing factor exists if the torture, murder involved depravity of mind, aggravated or an battery to the victim. Torture or aggravated battery victim shall be found if the defendant cause, cause, intended to and did in fact severe physical or psychological pain suffering prior to the victim to the vic death,38 tim’s “severity” measured either intensity pain, or the duration of pain, or a combination of both.39 Where the murder product was not the greed, envy, revenge, or another of ordinarily those emotions murder, associated with and served purpose no for the beyond defendant pleasure his killing, the court shall jury instruct meaning on the depravity specific this context. For the defendant who killed it, for enjoyment because the just happened victim to be area, in the all, kill, or for just no reason at society must be able to reserve its most extreme sanction. circumstantial, proof totally 38In most of these cases will be because the unlikely get testify defendant is on the stand and to his intention to cause pain prior to death. The trial court will therefore be most careful to instruct finding pain on the distinction between a was foreseeable and the beyond need to establish a reasonable doubt that defendant intended to inflict
pain prior to death. 39Execution-style may definitely provision: murders be included in this if practical executed, certainty the victim is aware as a that he is about to be his psychological suffering obviously making is extreme. the victim aware of execution, such purpose doing imminent the defendant must have as his so knowledge great that this psychological will cause the victim to endure suffer- ing.
IV. Pretrial Issues Having determined that the Act withstands constitutional scrutiny, allegations we turn now to defendant’s that numerous *73 infecting errors his trial mandate reversal of both his conviction and his death sentence. presentation accordance with the in brief, grouped allegations defendant’s we have these into three categories chronological they generally into which fall. In this V, section and section we treat defendant’s claims that errors pretrial stage
that occurred at the and guilt at the trial in the phase, respectively, require reversal of his murder conviction. VI, In section we address defendant’s claim that errors that place in sentencing proceeding took his warrant reversal of the sentence of death. County
A. Selection of Essex Juries poses challenge Defendant County jury broad to the Essex system. (1) selection He grand petit contends that: juries that indicted and tried him were from drawn lists that are unconstitutionally underrepresentative blacks; (2) grand jury procedures by assignment judges used in the county Jersey statutes; (3) violate New selection proce- the selection grand jury forepersons dure for excludes blacks and women. rejected The Law Division all three of defendant’s claims. Ramseur, (1984). N.J.Super. State v. We consider them in turn.
1(a). County, petit grand juries Since 1979 Essex both have been chosen from a “source” consisting every person list Department whose name is found on either the of Motor (DMV) Vehicle licensed registration driver list or the voter list. 2A:70-4, L.1979, by N.J.S.A. amended c. 1. The source § arranged by municipality. list is From it is derived the “master” list, persons which consists of the qualify- names of all to whom ing questionnaires Jury managers will be sent. determine how many questionnaires should be sent anticipated based on their experience needs and their as to what they rate of return can expect from mailing. They then create the master list randomly selecting required number of names from the source list. The design actual of the pro method insures that spective jurors are chosen from each street each municipality selecting without person more than one any from one house Ramseur, hold. State v. supra, 197 N.J.Super. at 571-72. questionnaires The 20 to completed that are 28% eligibility. returned are screened for Persons who have served jury years on a within last seven or who have received a questionnaire in the four years ineligible. last are deemed On the basis of information questionnaire, returned with the hardship extreme remaining cases are excused. The names are placed “qualified” qualified on the list. Once the list is consti- tuted, managers randomly grand it; jurors select from grand jurors those not designated petit selected are jurors. *74 The panels lists are divided into placed alphabetical and jurors order. The report then receive to jury summonses for duty. presented showing
Defendant evidence un- blacks40 are derrepresented jury qualified on the and According source list. figures, percentage to the 1980 census of black adults ages County between the of 18 and 74 in Essex 35.9. experts separate surveys Defendant’s conducted three between percentage and 1982 to determine the of blacks on the (one Averaging telephone lists. surveys the results of two 1982) May May “geo- conducted another and a trial, students, underrepresentation 40At defendant raised the low-income Newark, people, young people, residents of and women as well of blacks as part challenge. rejected. of his were constitutional These claims State Ramseur, supra, N.J.Super. at 576-82. He has since chosen to focus his argument respect Accordingly, on his claims with to the exclusion of blacks. alleged underrepresentation we will to blacks confine our discussion only, respect groups. do not with other reach claims May (corresponding inference” to the study41 graphical that blacks experts concluded telephone survey), defendant’s list individuals on the source of the represented about 21.3% qualified list. of the individuals on about 21.8% expert testimony on sought defendant’s The to discredit State addition, conducted its prosecution grounds. several the actual number of “headcount” to determine own informal parties stipulated that this jury duty. The appearing for blacks persons of those who only prove the race study was intended service, prove composi- the racial appeared for not to actually This con- qualified lists. “observation” tion of the source jurors appeared for petit of the 4451 who cluded that 32.2% black, figure closely approxi- period duty in the studied were county population. A eligible in the mating the blacks 35.9% grand jurors of the concluded similar “headcount” 24.6% finding make a factual as to The trial court did not were black. Be- scientifically reliable. prosecution’s data were whether constitutionally insig- figures to be cause it found defendant’s nificant, credibility of his to evaluate the the court also declined n. 4. expert N.J.Super. at 574 witnesses.
Kb). presented possi analyze the evidence We must state constitutional of defendant’s federal and ble violations equal protection of the laws. rights impartial jury an and to Const, Const, I, VI, XIV; paras. art. amends. N.J. U.S. explained: Division 41Asthe Law procedure geographic in which the race of a inference method is a County particular juror he [or] from the area of Essex in which is inferred makeup county up tracts. The racial lives. The was broken into she *75 racially on the neutral from census data. Each name tract is determined county. particular If the tract in a tract in the source list is identified with black, juror juror the race of the which the resides is classified 90-100% juror in which the resides is classified inferred to be black. If the tract is black, living juror Jurors in tracts is inferred to be white. as 0-10% N.J.Super. at [197 573.] were not counted. classified as 11-89% black
215 5, clause, equal protection 9.42 Under the selection of both grand petit jurors any must be free from taint of discrimi natory purpose. (10 v. Virginia, Strauder West 100 U.S. Otto) 303, (1880). amendment, 25 664 L.Ed. Under the sixth petit jurors pools represent must be drawn from a “fair community, Missouri, cross-section” of the Duren v. 439 U.S. 357, 26, 664, 26, 579, 368 n. 99 670 S.Ct. n. 58 L.Ed.2d 589 n. 26 (1979); there authority suggesting is also a similar cross-section right regard grand jury with state, selection in this where right by grand jury indictment a constitutionally is protected, Porro, 259, N.J.Super. (Law State 152 v. 265 Div. 1977), 'd, N.J.Super. den., aff 158 269 (App.Div.), cert. 439 U.S. 1047, 724, 99 (1978); 58 S.Ct. L.Ed.2d 706 see N.J. Const. of I, para. art. 8. 1947 prove
To
equal protection
either an
or fair cross-sec
claim, a
tion
defendant
identify
constitutionally
must first
a
i.e.,
cognizable group,
group capable
being singled
out for
discriminatory
Partida,
482,
treatment.
430
Castaneda
U.S.
494,
1272, 1280,
498,
(1977);
S.Ct.
51 L.Ed.2d
Duren v.
Missouri, supra,
364,
668,
atU.S.
at
Second,
test,
equal protection
under the
the defendant must
prove
underrepresentation”
significant
“substantial
peri
over a
time,
Partida,
od
Castaneda v.
430 U.S. at
S.Ct. at
L.Ed.2d
whereas under the sixth
representation
amendment the
must
defendant
show that the
particular
“fair
group
period
over
reasonable”
time,
Missouri, supra,
Duren v.
216
support
racially
procedures
selection
use of
non-neutral
underrepresen
by
raised
substantial
inference of discrimination
Partida,
494,
supra,
tation.
430
at
97
Castaneda v.
U.S.
S. Ct.
1280,
the sixth amendment’s
at
at 510-11. Under
L.Ed.2d
test,
purposeful
the defendant need not show
fair cross-section
underrepresenta
merely that the
discrimination but must show
Missouri,
v.
systematic
exclusion. Duren
tion was due
364,
668,
587.
at
at
Having proved the three
under
tests, the defendant has made
or fair cross-section
protection
a rebuttal
case and the State must establish
prima
out a
facie
equal
tests. Under
case,
under the two
which also varies
dispel
must
the inference of
analysis,
the State
protection
example, showing
permis
by, for
intentional discrimination
procedures have
selection criteria and
racially neutral
sible
v. Parti
result. See Castaneda
disproportionate
produced
1281-82,
497-98,
at
51 L.Ed.2d
da,
97 S.Ct.
430 U.S.
test,
at 512.
prima
Under
fair cross-section
case
facie
showing
significant
is overcome
that a
state interest is
*77
manifestly
primarily
aspects
and
advanced
those
the jury
of
process
disproportionate
selection
that result in
exclusion of the
group.
Missouri,
distinctive
supra,
Duren v.
Reducing essence, both tests their constitutional whether analyzing grand a or petit jury challenge, we primarily would on cognizability group focus of question, the substan- tiality of underrepresentation, possible and the of causes it. recognize separate We prongs of each test are interre- lated, seeming like converging analysis streams of rather than rigid compartments. application of prac- Our the test must be mechanical, remembering tical rather than the ultimate judgment demanded is whether there has been unconstitutional in the County process. exclusion Essex jury-selection We do here seek to “turn inherently matters that are incommen- Texas, surable into mere of matters arithmetic.” Cassell v. 339 291, 282, 629, 633, 839, 70 (1949) U.S. 94 849 S.Ct. L.Ed. (Frankfurter, J., concurring).
Kc). unquestionably cognizable Blacks being constitutionally group, defendant prong equal has met the first of both the protection See, fair e.g., cross-section tests. v. Rose Mitch 545, ell, 565, 2993, 739, 3005, 443 99 61 U.S. S.Ct. L.Ed.2d 756 (1979). yet specific
No provided court has mathematical test for determining underrepresentation when becomes “substantial” Rather, constitutionally suspect. and therefore impermissible ranges underrepresentation of on have been identified a case- See, Missouri, by-case e.g., supra, basis. Duren v. 439 U.S. 357, 664, (group represented 99 58 S.Ct. L.Ed.2d 579 of 54% community population jury pool); but of Castaneda v. 15% Partida, 1272, 482, 430 97 S.Ct. 51 493 U.S. L.Ed.2d (79% community, Louisiana, of of jury pool); v. Alexander 39%
218
625,
supra, 405
1221,
(21%
U.S.
S.Ct.
92
panel.
projects
expected
jury
This method
the number of minorities
on each
panel
population percentage
on
based
and then measures the difference
figure
actually
between this
and the number that
serve.
Thus,
any array
jurors
juries
jurors
of 120
from which 10
of 12
each were
selected,
50%,
minority population
expect approximately
with a
of
one would
6
minority jurors per panel.
only
minority jurors,
If there were
or4
5
using
difference would be 1-2. Often courts
this method have held that a 1-2
person average
See,
jury
insignificant.
e.g.,
difference in a
of 12 is
United
1293,
Kleifgen,
(9th Cir.1977);
Goff,
States v.
557 F.2d
1297
United States v.
509
825,
(5th Cir.),
den.,
857,
109,
F.2d
826-27
cert.
423 U.S.
96 S.Ct.
219 simplest method, Alabama, enunciated in Swain v. 380 202, 85 (1965), U.S. S.Ct. L.Ed.2d 759 overruled on other grounds, U.S. -, Kentucky, Batson v. (1986), upon by
L.Ed.2d 69 and relied the State and the Law case, this Division in is absolute disparity. It measures absolute difference the proportion between of the subject group general population pool, and its proportion to the i.e., Swain, qualified list. while disparities the absolute ranged 16%, purposeful from to the Court held that discrimi nation on based race alone could not “satisfactorily proved be by showing group that an identifiable community in a is under represented by 208-09, as much as 10%.” Id. at S.Ct. at L.Ed.2d 766. disparity largely descriptive
Absolute
is
a
measure that
states mathematical terms the
of
disparity
existence
a
may may
not be the result of unconstitutional discrimination.
likely
It is
underrepresentation
more
reveal
where the sub
ject population
large
population,
because the smaller the
striking
less
appear.
numerical differences
See Foster v.
805, 818-19,
Sparks,
(5th Cir.1975)
506 F.2d
834-35
(appendix
J.);
by Gewin,
Kairys,
Lehoczky, “Jury Representa
Kadane &
Lists,”
Multiple
tiveness: A Mandate for
Source
65 Calif.L.Rev.
(1977) (hereafter
Representativeness”).
“Jury
793-94
Thus
disparity probably
a
absolute
does
demonstrate
4%
impermissible underrepresentation
group comprises
where
population (i.e.,
population,
jury pool).
50%
50%
46%
However,
cognizable
where the
group
only
constitutes
8%
(8%
population,
disparity may
significant
popula-
4%
*79
short,
test,
problem
In
the
with
which focuses on the actual
this
number
jurors,
testing
designed
is
rather
for
to be
than
intent it seems
better
testing
designed
to the
It
for harm
defendant.
is
to show how much difference
underrepresentation
particular complaining
to the
will make
defendant
However,
rather than
demonstrate
the intent
v.
and test
of the state.
as Rose
Mitchell,
551-59,
2997-3001,
746-51,
supra,
220 test, group second tion, this jury pool). Under Swain 4% possible underrepresenta- protection against receive no would tion. method, uses the absolute comparative disparity,
The second
magni
a
to measure the
figure and constructs
ratio
disparity
population
size. It
given the difference
disparity
of the
tude
disparity by
popula
by dividing the
is calculated
absolute
example,
disparity in a
figure.
In the above
50%
tion
4%
disparity whereas that
represents an
relative
population
8%
population of
is a
disparity in a
same
absolute
8%
50%
4%
disparity
the dimin
disparity. Comparative
measures
relative
underrepresented group,
likelihood that members of the
ished
whole, will be called for
compared
population
to the
as a
when
example, in the first
Again using the above
jury service.
underrepresented group are
less
population, members of the
8%
majority group.
jurors than
likely to serve as
members
second,
likely.
method
In
those members are
less
This
50%
takes the size of the
largely descriptive,
is also
but because it
account,
register
likely
it is more
subject population into
underrepresentation
groups.
of smaller
The United States
acknowledged, though
explicitly
it never
Supreme Court has
Louisiana,
adopted,
formula in
v.
405
this
Alexander
1224,
629,
109, (1975); People v. 36 Cal.3d L.Ed.2d den., 965, Cal.Rptr. cert. 469 U.S. 105 S.Ct. P.2d (1984). 83 L.Ed.2d permissible these cases has a maximum level been none of However, specified. one court has observed it is that a well thread, these cases have common comparative disparity [i]f cognizable strong under the sixth over is evidence of underrepresentation 50% A of about and fourteenth amendments. 50% comparative disparity may depending in not be to show such part upon may adequate underrepresentation, group size of well below disparity question. Finally, comparative the absolute also is to be where sufficient, disparity unlikely especially 50% (Ct.App.1984).] 107 Idaho 692 P.2d small. [State Lopez,
221 recognized The approach, third Supreme Court in Partida, 17, at 496 n. 97 U.S. S. v. Ct. Castaneda 1281 n. 51 L.Ed.2d at n. the Statistical Decision (SDT) Theory significance test, or statistical purely is not descriptive. attempts It aspects measure the likelihood process of randomly. the selection do not operate it Thus possible indicates the existence of discrimination within the system. Specifically, provides SDT a measure of the extent to which the of percentage minority jurors actual be expected can to differ from the of percentage minority proportion general population if process completely the selection ran dom. SDT figure further indicates whether this is so at vari expected ance with the hypothesis outcome that the of random ought to rejected. selection be illustration, purpose
For the
of
process
selection
groups
being compared
which two
are
can be
to filling
likened
a
1,000
population
box with a
slips
paper
of
of
of which 600 are
pink
gray,
having
randomly
someone
select a
slips.
of
sample
expected
pink slips
number of
would
expected
slips
be 60 and the
of gray
number
40.
would be
That
is,
any drawing
there
probability
drawing
would be a
of
60%
pink slip
probability
a
a
selecting
gray
40%
one.
However, a
surprised
statistician
would
be
if the number of
pink slips
expected.
“deviated” from the
Statisticians measure
this deviation
aby
formula that
them
enables
to tell whether
expected
the result is so far from the
as to demonstrate that
Using
the result was not random.
our illustration above and
Castaneda,
applying the formula of SDT described in
we would
expect that
expected
the standard deviation from the
in our
drawing
plus
would
or minus 4.8
If
slips.44
the result of our
Castaneda,
equals
square
44Ascalculated in
the standard deviation
root
product
jurors
probability
of the observed number of
times the
drawing
allegedly underrepresented group
probabil-
a member
times
ity
drawing
U.S. at
nonmember. 430
496 n.
As percentage in blacks the Essex County population eligible 35.9, jury service is and defend- surveys ant's percentage showed that of blacks on the qualified juror periods list for the surveyed only was 21.8. (35.9 21.8). disparity Thus the absolute was minus The 14.1% (14.1 comparative disparity 35.9)—that is, was divided 39.3% any roughly greater white had any chance than 40% black of being Finally, selected. defendant calculated the standard devi- ations to expected be 28.9 from the deviation.
cert,
—den.,
U.S.-,
271,
(1986).
example
107 S.Ct.
Finally, the expected difference between the and observed blacks, deviations, number of 28.9 standard as calculated defendant, is almost identical to the 29 standard deviations held Partida, supra, signifi- Castaneda v. to be constitutionally may cant. We thus be confident that the demonstrated under- representation County jury pools of blacks in the Essex is not the result of random underrepre- selection. The fact that the not, however, sentation is not random does mean it is intention- al, substantial; nor does it mean that it is the determination of substantiality requires judgment, applica- an of exercise not the tion of a formula. evidence, light prior
We conclude that the statistical of law, alarming compel not so case is as to of conclusion underrepresentation. is, We substantial believe evidence however, significant enough possible to alert us ato constitu- appear tional violation. Because the numbers themselves to underrepesentation, straddle borderline of substantial we surrounding must look circumstances the statistical showing import. to determine its full constitutional
We look first the nature the source lists. federal recognized importance courts have that the constitutional showing part depends degree statistical on subjectivity higher involved in the selection disparity mechanism. A disparity objective criteria, i.e., proceeds tolerable from “[i]f age, attainment, registration vote, etc.,” educational than “if disparity proceeds application tests, subjective from the opportunity under which there is wide for racial intentional Thomas, discrimination.” Blackwell v. 476 F.2d 447 n. 7 (4th Cir.1973); Ponte, (1st see Barber v. A.2d — Cir.1985), den., U.S.-, cert. 106 S.Ct. 89 L.E.2d (1986); Thompson Sheppard, 832; v. 490 F.2d at Stone, Jury Challenges: “Grand Discrimination by De Defeat fault,” Eng.L.Rev. (1981). W.New 681-82 The use of registration DMV facially and voter lists is a procedure. neutral “objectively, The source lists are drawn' mechanically, random,”. Thompson Sheppard, supra, 490 A.2d at allowing opportunity subjective no racially-motivated judgments. *83 holding
We jury system have found no case a selection unconstitutionally underrepresentative where the statistical showing presented was similar to that and objective here where voting registration selection criteria such as and drivers’ licens es were In used. the cases mentioned involving above similar comparative disparities, absolute and subjective judgments by process juror state officials entered into constituting Mandeville, rolls. See Preston v. supra, 428 A. 2d 1394 at (“[defendants maintained the master partially roll at on least
225 subjective judgment distinguished objective from criteria or Cox, Stephens v. system”); random selection on 449 commissioners, at (jury F.2d 660 were to rely who allowed on knowledge in personal choosing jurors, “opportunity had to contrast, discriminate”). In in Thompson Sheppard, supra, v.
490 F. 2d showing—an where the statistical absolute 11% disparity comparative disparity—was comparable 36.4% Stephens Preston here, those in very similar jury lists, where randomly but lists were chosen voter from court carry held defendant his failed burden of demonstrating a violation the fair cross-section standard. Id. at 833. general, upheld courts consistently against have constitu challenge drawing jurors
tional the random from lists of Blair, F.Supp. voters. United States v. registered 493 (D.Md.1980), aff’d, (4th Cir.1981); 407 F.2d State v. 500 Porro, supra, 152 N.J.Super. generally Annot., at 266. See Requirement “Validity of of Selecting Prospective Practice Exclusively Voters,” Registered Jurors from List of 80 A.L.R. (1977)(collecting cases). 3d A few courts have found unconsti underrepresentation used, tutional voting even where were lists showing but those cases the substantially statistical was People Harris, that made here. See than more dramatic supra, 438-39, Cal.Rptr. at P.2d Cal.3d at at 788 (56%comparative blacks, for disparity comparative dispari 87% Lopez, supra, State v. Idaho 692 P. ty Hispanics); (61% comparative Hispanics). 2d disparity for Second, period look to we the time over which are violations alleged. inquiry goes history This to the existence of a case, only In this on exclusion. we have evidence based two telephone surveys, May May one in 1981 and another geographic study corresponding telephone and one to the 1982 survey. Particularly given dispari the borderline nature of the shown, ties we are reluctant to strike the entire most down County system covering Essex on the of studies basis Commonwealth, Ford v. See S. W. periods. these time 2d *84 226 (statistical (Ky.) jury
304
based
of
sampling
data
on random
panels
years
showing
underrep
for two
not
does
constitute
of
time),
den.,
significant period
resentation over a
of
469
cert.
984,
392,
(1984).
U.S.
105
Moreover, suggestion, we concur in frequently cannot made, systems selection based on voter lists are effectively insulated from constitutional attack random since properly compiled selection from a voter list can never amount “systematic as required prong exclusion” under the third See, e.g., Duren test. Clifford, United States F (8th Cir.1981); .2d Bernal, State v. 137 Ariz. (1983);
P.2d
Sheppard,
State v.
So.2d
(La.1977) (system
registration
both
involved
voter
and driver
lists);
(Mo.
license
Ferguson,
State v.
2d
651 W.
524-25
S.
*85
Ct.App.1983). These courts reason that the fair cross-section
requirement
long
qualified
is satisfied so
as each
citizen is
provided
equal opportunity
“an
to
in
be selected
random draw
ing
petit jury.”
Clifford, supra,
to serve on a
United States v.
however,
principle,
2. challenge composing addition his to the method of procedures jury pools, defendant asserts that the used county assignment judges grand panels assemble pools impermissibly grand jurors from those on selected basis of race. trial testimony court effect upon receipt heard to the
of the summons grand jury duty and realization that means six by 46Our confidence in correctness the of our conclusion is bolstered surveys may degree underrepre indications that defendant's overstate the of jury pools. Photographs grand jury of blacks in sentation the of each that sits County by county in are Essex taken the officer. sheriff We have obtained copies photographs years (Included through these of for the 1982. was photograph grand jury September the that indicted defendant in black.) twenty-three jury which indicates that nine of members were Our photographs years, these review of indicates that each of the in four black grand jurors grand juries constituted at least 24% of the members of the empanelled average (A jurors—6.7% and that the was 25.3%. number of over years—were photographs the four absent when the were taken. We counted non-black.) jurors suggestion representa all absent these In its that black grand juries significantly higher figure tion on the is than the arrived 21.8% by experts, defendant’s this determination consistent is with the evidence provided by headcount, the State’s informal which found that 24.6% of the grand jurors appearing during survey period for service were black. That study concluded, addition, petit jurors informal in that 32.2% of the who appeared duty percentages, approximately for were black. Both of these 25% grand petit jurors, of and 32% of are within boundaries. constitutional above, that, given accepting For the reasons we are satisfied even defendant’s face, on its evidence no been constitutional case has made out. We thus feel to, not, hinge holding any way no need and do our on these observations question calling accuracy presentation. into of defendant’s statistical Nor system do these observations unsettle our that the conviction should move greater representativeness. assuring toward In the interest all concerned manner, system being that our selection administered a constitutional however, point we would be if we out remiss did not that the factual assertions underlying may defendant’s claim well be inaccurate. request service, juror a written every almost submits weeks are screened from service. These letters for excusal grant- are obviously requests office and the meritorious clerk’s assignment County during for judges The Essex ed. two review the letters appeal to this would then periods relevant grand jury was questionnaires panel before the called. early process seventy-five After the produces names. selection excuses, for fifty grand jurors actually appear service. about selection, assignment ques- judges would
At the actual both (but generally deny) excuses. each and reconsider juror tion slightly selecting grand juries differed judge’s method One However, briefly he panel panel. always to interviewed from excuse, respect juror then if the was juror each with to an excused, him or next seat in the he asked her either take the in the He exercised discretion jury box or to wait courtroom. selecting get community, section so jurors to “cross interests, life, backgrounds properly all are that all all walks of grand jury represented____” excluding This from the included jurors willing were that indicted defendant two black who even mix of “deliberately trying get he was an serve because that____” races, background things like people from “get some choosing grand jury, judge tried to another can,” many if I he had “too white women white males because now____” judge jury right On another occasion the on panel fifty or so and then selected interviewed the entire *87 grand panel twenty-three people to sit as the among from the stating to a cross-section. jury, again that he wanted obtain proce- judge The other also this select-after-interview followed discretion, of According judge, to the first the exercise dure. simply of one another he sometimes chose individuals race over not, however, famil- judge The was to obtain a racial balance. the figures County, for Essex or actual iar with the census blacks, judge the testified that percentage although of other he population, that blacks constituted about 40% “get always attempted good to balance between black white.”
Defendant contends assignment judges’ practices that disregarded statutory and constitutional commands and man- of date dismissal his up statutory indictment. We take first. issue procedures
Grand selection governed are Jersey New Specifically, N.J.S.A. 2A:71-1 to -7. pro- 2A:71-2 N.J.S.A. grand jurors vides that randomly shall be drawn and seated for on panel they service are selected. N.J.S.A. 2A:78-1 assignment judge allows juror to excuse a “whenever it appears any that member ... should be excused.” N.J.S.A. prospective 2A:73-1 mandates grand jurors that remaining granted after excuses have been be seated in the order they Finally, were drawn. prohibits disqualifica- N.J.S.A. 2A:72-7 qualified tion grand petit of otherwise jurors or on account of race, creed, color, origin, status, national ancestry, marital gender. minimum, At a legislative the statutes evidence clear to intent maximize the objectivity grand randomness and juror process despite selection exercise discretion inher- granting ent in the of excuses. argues State discretion allowed by N.J.S.A. permits assignment judges grant
2A:78-1 pursuit excuses in of a grand fair cross-section in the jury. It further asserts that procedures even if the improper, used were the defendant’s prejudice failure show defeats his claim. recognize
We judges, that both in the exercise of their discretion, attempted purpose salutary advance the obtain ing jurors. a fair cross-section of For it this is difficult to However, jury criticize them. integral part selection an process every fair to which criminal defendant is entitled. Singletary, (1979). State juries 80 N.J. isIt vital that be selected in a manner free suspicion. from taint To pertinent practice safeguards end the in the statute must be carefully observed. v. Wagner, N.J.Super. State (App.Div.1981). responsibility cases this is of the (statutes deepest Kociolek, (1957) concern. State v. N.J. *88 twenty providing peremptory challenges for for criminal de- pre-trial delivery charged jury fendant and list to defendant mandatory). are with murder judges they testified
Both that on occasion excused prospective grand jurors particular of a race to a racial obtain noted, although they they attempted, As balance. stated excusing grand jurors, representative to obtain a cross- when section, they they both indicated that did not know the actual Thus, population County. they of Essex exercised their black conceptions repre discretion to realize their individual of fair sentation, conceptions by that were not informed the facts. It clear, however, jury that modern selection statutes were designed especially subjective to avoid such evaluations of grand composition. necessity jury dispute While we do not allowing judge to discretion to excuse those exercise excusal, prospective grand jurors may eligible who be permitted judges by are not the statute to exercise their discre implement personal crass-sectionality. tion to notions of requirement process of a random to insure representativeness grand jury panels demands that each person equal serving. Long, have an chance of See State v. (Law Div.1985). grand N.J.Super. particular 483-84 A required image community. is not to be a mirror Porro, supra, N.J.Super. at 267. do not State v. We contemplated by Legisla 2A:78-1 was believe that N.J.S.A. representation grand ture mechanism fair on as the which Rather, legislators jury panels would be achieved. intended requirements of 2A:71-2 would that the randomness N.J.S.A. Finally, quite accomplish this result. it is clear N.J.S.A. clear mandate of 2A:78-1 cannot read to contravene the be jurors disqualified solely 2A:72-7 that on the basis of procedures just race. The followed here did that. question whether these statu
We now turn to tory require as to dismissal of violations are such dimеnsion our state’s statute defendant’s indictment. We do not construe *89 232 requiring
as statutory dismissal of the indictment whenever the breached, regardless commands are or of of nature effect the violations or the intent those of who committed them. It judicial power well-settled that to dismiss an indictment is not except plainest grounds be exercised on clearest that an indictment should stand manifestly unless deficient or palpably Wein, 491, (1979); defective. State v. 80 501 N.J. Weleck, 355, (1952). State v. 10 N.J. 364 In formulating reme dies for violations of the Jury Federal Selection and Service Act, (1982), 28 U.S.C. 1861-1869 federal courts have noted §§ Congress that “left room by providing for harmless error that only dismissal should lie when there was a substantial failure comply Jury with the Selection and Act.” [Federal Service] Evans, (5th Cir.), den., Unted States v. 526 F. 2d 705 cert. (1976). 429 50 U.S. L.Ed.2d 78 We believe that our statute is purpose, infused with a similar and that violations of it should warrant of dismissal an indictment only they where substantially undermine the objectivity randomness and of the selection mechanism cause harm to the defendant.47 mind, principles
With these we decline to dismiss defendant’s statutory indictment because of the violations. We acknowledge assignment procedures that the judges’ were im proper they may and that have potential even created the However, abuse. no one suggests independence that the of the grand jury compromised, itself was Hart, State v. cf. N.J.Super. (App.Div.1976), panel or that the was in any way prejudiced, biased or grand or that “the jury had before noit substantial or rationally persuasive upon evidence indictment,” which base its States, v. Costello United regard, irregularities grand juries 47In this selection are to be distinguished juries. recognized from in the those selection of It has been petit fundamental role in our special, petit played system justice criminal call for reversal a conviction because of may improper showing prejudice. selection in the even absence of a procedures State Wagner, Kociolek, 400; 23 N.J. State v. supra, at 567. N.J.Super. 359, 364, U.S. 406, 409, (1956) 76 S.Ct. 100 L.Ed. (Burton, J., concurring). any Were we to sense such fundamen- injustice, tal we proceed- would not hesitate to call for further ings. Although procedures obviously implicated used randomness of the process, showing selection there is no they substantially principle, undermined the randomness when, here, purpose judges’ actions was to achieve greater racial balance impermissibly and not to exclude mem- cognizable group, bers of a the statute does not call for a *90 dismissal. agree
Nor can we with defendant’s contention that the judges’ procedures give County grand rise to a claim that Essex juries were in constituted a manner violative of the sixth or discussed, fourteenth previously amendments. As one of the prima essential elements of a procedures claim is that the facie used result in underrepresentation cognizable substantial of a evidence, group. produced however, Defendant concerning no representation the actual County grand of blacks on Essex juries; solely his evidence percentage went to the of blacks in pools the juries from which the were selected. It is thus impossible say for this assignment judges’ Court to that the procedures, which play qualified came into after the list was constituted, any blacks, underrepresentation caused much less underrepresentation. a substantial Plainly, defendant’s challenge constitutional system prong to the must fail on this prima the test. fade assignment judge’s dismissal of two blacks from specific grand
the jury requires sepa- that indicted defendant analysis. limiting prose- rate constitutional In recent decisions cutors’ of peremptory challenges, use both this and the Court Supreme United States Court have made clear that unconstitu- cognizable groups during tional exclusion of blacks and other may selection in occur an individual case as well as systematically period over a Kentucky, of time. See Batson v. — -, -, 1712, 1722, 69, 106 S.Ct. 90 U.S. L.Ed.2d 87
234
Gilmore,
508,
(1986);
(1986). Applying
v.
527
State
N.J.
Gilmore, however,
principles set
the
forth
Batson
we
grand
hold that the dismissal
two blacks from defendant’s
magnitude.48
an
jury was not
error of constitutional
Batson,
prosecutor
the
used his
chal
peremptory
lenges
venire,
from
petit jury
to strike all four blacks
defendant,
black,
leaving
an
jury.
to be tried
all-white
—
1715,
at-,
at
U.S.
106 S.Ct.
L.Ed.2d at 78. Overrul
ing
prior
Alabama,
its
determination
Swain
U.S.
85 S.Ct.
L.Ed.2d
held
Court
may
prosecutor’s
equal protection
conduct
have violated the
clause.
of black
jurors,”
“Exclusion
citizens from service as
said,
primary
the Court
example
“constitutes a
evil
—
Fourteenth
designed
Amendment was
to cure.”
at
U.S.
-,
added).
at
at 80 (emphasis
L.Ed.2d
To
prima
purposeful
“establish a
facie case of
discrimination in
petit
Batson,
jury”
selection of
under
the defendant must
prosecutor
show that
peremptory challenges
“the
has exercised
to remove from the venire members of the
race.”
defendant’s
at-,
Id.
S.Ct. at
90 L.Ed.2d
87.
The facts
present
any
assignment judge
case belie
contention
powers
exercised his
in order
from
“to remove
the venire
*91
constitutionality
48Defendant’s brief does
attack
not
the
of the
dismissal
prospective
jurors
comply
two
the
black
for failure to
with Batson and Gilmore
for the obvious reason that his brief was written before those cases were
does, however,
jurors
decided. Defendant
that
claim
the dismissal of these
grand jury
from the
which indicted him was unconstitutional because it
greater underrepresentation
"resulted in a
his
members of
own race than
randomly."
would have occured
The critical flaw in this claim is
the
that
Supreme
underrepresentation by comparing
repre
Court has not defined
the
group
randomly”
sentation of the
that
have
"would
occurred
with the actual
Rather,
representation
group
jury.
"underrepresentation
of the
the
on
be
must
proved
by comparing
proportion
group
population
...
the
in
total
the
proportion
Partida,
grand jurors."
supra,
the
called to serve
v.
Castaneda
494,
1280,
added).
(emphasis
U.S.
430
In supra, 508, State v. 103 N.J. we held raising addition to equal protection concerns identi Batson, fied in prosecutor’s peremptory use of challenges to exclude all petit jury blacks from a violated the defendant’s state right impartial constitutional to an jury drawn from a representative cross-section of community. We do not right49 believe by that this was assignment judge’s violated Gilmore, actions this case. defendant was tried an here, jury; all-white nine blacks grand jury. remained on the course, Of “one need not minority jurors eliminate 100% impermissible purpose. achieve an minority’s representa If the as, tion ‘impotence,’ is reduced to example, by challenge disproportionate members,” of a group repre number of requirement may sentative cross-section fulfilled. Com Soares, monwealth v. 377 Mass. n. N.E.2d den., (1979). cert. U.S. L.Ed.2d 110 But assignment judge’s it is clear that the practices here did not reduce minority’s representation “impotence” or “restrict unreasonably possibility petit jury comprise that the will representative community,” cross-section of the State Gil more, supra, grand N.J. at 529. The that indicted representative County defendant was more than of the Essex deciding, right grand jury assume, 49We without this at the applicable stage jury stage. as well as at the See State v. Porro, 152 N.J. petit Super. *92 at 265. black population, and therefore hold that the we dismissal of jurors, erroneous, the two not additional black while was uncon- stitutional.
3. Lastly, defendant dismissal of his seeks indictment on the ground procedure selecting grand that the for jury forepersons County in Essex contravenes the sixth and fourteenth amend- ments, I, 5, 8, well as paragraphs Article and 9 of New Constitution, Jersey Jersey “and New statutes.”50 grand selected, jury Once was assignment judges each foreperson used discretion to choose the and deputy. his or her potential forepersons, judges To locate would all review the questionnaires grand and jurors prior excuse letters of the to being empaneled. their grand jury Once empaneled, was judges both would a short grand have conversation with the jury manager, to foreperson determine who would be the best and deputy. judges Both they testified that tried ensure that people forepersons. a “balance” of judge became One leadership took into account and administrative skills and edu- employment background. cational or The other judge testified although “leader,” he look expected did not for a he articulate, foreperson average to be ability have an read write, be timid. The defendant adduced evidence that grand position, jury foreperson blacks there was an disparity 83%, absolute of and a comparative disparity 29.8% of with standard 7.2. deviations requirement
The sixth amendment’s fair cross-section post does grand jury not extend to the foreperson. See specify infringed, 50Defendant does not which he statutes believes were making statutory analysis of his claim difficult. N.J.S.A. 2A:72-7 outlaws grand jurors, petit specific discrimination the selection no but makes foreperson. only reference to selection of the We believe the statute addresses body body selection of the as a not the of a selection member perform administrative tasks.
237 Holman, 1340, (11th v. Cir.1982); United States 680 F. 2d 1356 Perez-Hernandez, 1380, (11th States v. 672 United F.2d 1385 Cir.1982). equal Only protection the clause has been invoked to post in prohibit discrimination that then when only the foreperson’s significant. functions are constitutionally deemed 339, States, 3093, v. Hobby United 468 104 See U.S. S.Ct. (1984). Moreover, L.Ed.2d 260 why we see no reason this interpret should Court the state Constitution to a create such Perez-Hemandez, In right. fair cross-section supra, the Elev Circuit, in explaining enth the why right fair cross-section does apply grand foreperson, the jury to said: [Tjhe right jury” given Sixth Amendment to an is full effect “impartial insuring groups that distinct of the are but are not community represented, given the to in the dominate, or, alternative, denied the opportunity opportunity justice. Accordingly, to in a of democratic the fair cross participate, system groups, grand jury, section is such as a or applicable analysis only petit which can as a whole. One alone represent society cannot the person represent divergent groups views, and ideas of the distinct which a experience, form grand jury group a Thus, foreman is a member of community. the which a cross section his or her but he represents or she cannot be community, fair cross section that F. 2d at [672 community. 1385.] equal protection outstanding, Ramseur’s claim is still how- tripartite underrepresenta- ever. The test is same the post grand jury foreperson tion underrepre- as for the qualified sentation of blacks in the source and lists. question grand foreperson here whether the performs significant equal
this state duties that are so that protection may Hobby clause be said be violated. In States, supra, Supreme post found United Court that grand jury foreperson “essentially of federal was clerical oaths, records, administering signing nature: maintaining 344-45, 104 3096, 82 indictments.” 468 at at L.Ed.2d U.S. S.Ct. 266. “the trappings at The Court found that ministerial post carry special powers meaning them no duties with that fully rights beyond posessed affect those [the accused] by every body.” member of that Id. at S.Ct. Court, According foreperson L.Ed. 2d at 266. has authority apart grand jury
“no from that of the as whole to act in a manner that determines or influences whether an prosecuted.” individual is to be Id. places primary
Ramseur
reliance on the plurality opinion in
Mitchell,
Rose v.
443 U.S.
L.Ed.2d
case,
739.
deciding
the Court
without
“assume[d]
regard
discrimination with
to the
only
selection of
the foreman”
required that a
conviction be set aside.
Id. at 551-52 n.
*94
at 2998
S.Ct.
n.
It is clear grand that the jury foreperson Tennessee position was in a guide to the decisionmaking process of the grand jury substantially and had greater power than his federal counterpart. case, In the instant found, the trial court based on the evidence adduced at the hearings, motion that the duties grand jury of the foreperson in this state are closer to those of federal forepersons than to those of forepersons, Tennessee and hence are not constitutionally significant. agree We with the conclusion of the court below and therefore leave it undist urbed.51 jury 51Wefind challenge no merit to defendant’s claim that his motion must hearing judge be remanded County. for a before from outside Essex In the court, initially requested lower assignment defendant judge that recuse County judges hearing himself and all grand jury other Essex from challenge. assignment judge properly recused himself from the matter witness, possibility because of the that he would be called as a but ruled that disqualify judges motions to judge sought other must be made before the to be disqualified. (providing ”[a]ny party may See R. apply 1:12-2 ... to a
judge disqualification") added). (emphasis for his He thus denied the motion Jury B. Struck
Defendant before implementation moved trial for of the so- called “Arizona” or “struck” jury system. The trial court had empanel eighteen jurors determined to leave until the conclusion of the case the selection of the twelve who would ultimately deliberate. Under form of “struck” system defendant, proposed by it have necessary would been to death- sixty a total qualify prospective jurors any perempto- before ry challenges could eighteen sworn, plus be asserted—the to be twenty-six to account for the peremptory challenges number of defendant, plus allowed sixteen accommodate the State’s peremptories.52 course, judges understanding, the other recuse "with the that defendant right any judge has the to seek to recuse individual as the rules and cases permit.” apparently right, Defendant never exercised that however. He position propriety challenge now to attack of the fact that his was Stewart, County judge. heard an Essex N.J.Super. See Bonnet v. (App.Div.) (holding party sought judge disqualification who had only assignment judge judge who heard his cause from the not the himself den., appropriately appeal), could not raise recusal issue on certif. N.J. *95 nevertheless, (1978). Reaching reject argument the we merits defendant’s that jury challenge County required judge the Essex who heard it “to evaluate ’’ 1)035’ right impartial hearing his and hence that defendant's to a fair and was assignment judges responsible While violated. are of administration system rules, judicial vicinage they pursuant in their to are this Court’s theory judges’ neither in nor in other fact "bosses.” Each member of the New
Jersey judiciary person only is accountable to no but the law and or to to his responsibility lodged assignment judges her The oath. in over court adminis hardly judges tration is of such matters a nature as to render other in the county incompetent propriety on the to rule of their actions or to constitute a might hearing preclude judgment, "reason which a fair and unbiased 1:12—1(f). might reasonably parties which lead counsel or the to believe so.” 71 challenges parties could peremptory that the have exercised 52The number 1:8—3(d)(1983), provides: is Rule which controlled to 20 charged shall be entitled is ... murder defendant If the offense ... challenges joint- peremptory challenges is tried if tried alone and to 10 such challenges peremptory if the is ly; defendant the State shall have 12 challenges peremptory for each afforded defendants and 6 tried alone jointly____ when tried rejected proposal The trial court jury defendant’s for a struck recognized system, parties required but that if the were to their peremptory challenges exercise after juror quali- each was fied, any good “neither counsel have idea as to the [would] composition eighteen of ... that ultimately members [would] qualified eighteen selected.” The court therefore jurors before parties were on to peremptories; called exercise as each exercised, peremptory a panel was new member was examined replacement juror qualified, on voir dire until a was at which point permitted party challenge the other was peremptorily. process in jury eighteen, The continued that fashion until a sides, satisfactory out, to both was obtained. As it turned neither the State nor defense exhausted its allotted number peremptory challenges. acknowledges jury
Defendant that the method of selection is reposed court, sound matter discretion of the trial but he denial jury contends that the of his motion for a struck discretion, amounted to an warranting abuse of a new trial proposal. before a chosen with his accordance defendant, jury system, says struck is the best suited for insuring impartial defendants receive fair and trial.
To the extent that claims defendant a constitutional right struck jury, right to a the claim is without merit. The peremptory challenges springs any not from constitutional ba statutory provisions designed sis but rather from to insure an impartial 62; jury. Singletary, State v. see N.J. 2A:78-7(c). may fix N.J.S.A. States reasonable limitations on procedures, peremptory challenge long right “so as the challenge away opportunity given is not taken and reasonable challenge.” McDowell, Ind.App. Veach v. 184 N.E. (1962). Thus, 2d peremptory manner which the
241 challenges exercised, statute, are if by not directed is within the court, right discretion of the limited defendant’s to a fair impartial jury. States, 134, 148, St. Clair v. United 154 U.S. 1002, 1008, 936, (1894); 14 38 S.Ct. L.Ed. 941 United States v. Turner, (9th Cir.1977); Brunson, 558 F.2d 538 State v. 101 — (1985); N.J. 140 Kentucky, supra, Batson v. U.S. cf. -, 69; Gilmore, 106 90 supra, S.Ct. L.Ed.2d v. State 103 508. N.J. State, (Del.1978),
In
v.
Foraker
jurors,
allowing
jury
as
the
evaluation of
as an
opposed
composition
legitimate.
entire
context of a murder
body.
trial, such a
is
procedure
(citation omitted).]
[Id.
at 215
States,
147-48,
See
v.
St. Clair United
at
44
U.S.
1007-08,
(defendant
S.Ct. at
system is not more fair for its benefits prosecutor, opportu- accrue also to the who will likewise use the nity comparative potential jurors. assessment of to make a
Moreover, jury system poses prob- the struck certain obvious lems, view, notably, requirement larger in our in its that -a group jurors questioned qualified. must be 3 ABA 15-2.6, commentary Standards Criminal Justice Standard for 1980). cases, (2d capital process particu- In at 15.70 ed. lengthy may required larly because individual voir dire (d) l:8-3(a) potential many jurors, under Rule here sixty. party perempto- Often neither will use all of the allotted challenges, jurors in ry questioned which case will have been unnecessarily. judicial economy by proposed
The concerns over raised system analogous were addressed this Court in an context in Rios, (1955). Rios, case, State v. In N.J. also a the trial court denied application defendant’s to exercise a peremptory challenge juror acceptable after the had been found rejecting defense counsel and had been sworn. In defend- error, ant's contention that the denial constituted Justice Wa- chenfeld, Court, writing for a unanimous observed: challenges swearing jurors, Were we to sanction after the of the peremptory it would soon become standard for counsel to withhold their practice perempto- challenges hoping until a full had been ry sworn, panel doubtlessly thereby gain advantage of an observation made after the entire had been panel seated. Such a would lead to but further and needless in the procedure delay jury justice. and would serve advance the ends of [Id. at 594.]
selection say disapprove This is not to that we the use of a jury “struck” se; however, system per say, it is to that trial courts'do not err seeking exigencies judicial system to balance the with parties exercising peremptory the interests of the informed challenges. say thus cannot analysis
We that the trial court’s essence, argument here was erroneous. defendant’s confus right impartial jury acquittal. es his to an his with interest entitled, however, jury Defendant is not to a he considers most him; favorably disposed to he is impartial entitled to an jury. right challenge exclusion, is one of not selection. E.g., Marchese, (1953). Here, State N.J. defendant has showing no system made that the produced anything used other impartial jury. than an The method of provided selection *98 defendant a fair and opportunity reasonable to exercise his peremptory challenges any juror to exclude defendant believed impartial. would not be We therefore hold that defendant was not to qualification jurors entitled sixty prior to the peremptory exercise of his challenges. jury The struck issue in future cases is left to the sound discretion of the trial courts. C. Dire Voir in sought permission
Defense counsel this case poten- to ask jurors questions tial several regarding racial attitudes and prejudices.53 court, however, The trial questioning forbade all subject except on the for single general question. This limitation, according defendant, intelligent challenges made peremptory challenges cause and impossible, violating de- you negative experience
53 1. Have had a with someone aof different race yes, your please own? If tell us than about it. you please your experi- 2. FOR WHITE JURORS ONLY: Would describe people? ences with black NEIGHBORHOOD, JOB, IF OR CHILDREN’S SCHOOL NOT MEN- TIONED, ASK: works)? any people working (place juror a. Are there black at where If yes. you What contact do have with them? any people living your neighborhood? yes, Are b. there black If What no, you Why you contact do have with them? If do think that is? juror age composition If c. has school children: is the What racial of the body your your any student at children’s school? Does child have black friends? you go 3. FOR NON-NEWARK RESIDENTS: Do ever have occasion Newark? your impressions neighborhoods? 4. What are of Newark’s black long you County? How 5. have lived in Essex your impressions a. IF OR FIFTEEN YEARS MORE: What are about changed years? you how Newark has over the last 15 What do think are changes? some of the reasons for these right fendant’s to an impartial jury under the federal and state Const, VI, XIV; Constitutions. See U.S. Const. amends. N.J. I, paras. art. 10. At a conference began, before selection the trial court not, all, case,” stated that “race is at factor in the and that any questions on the unnecessary. issue therefore It were saw questions relating proposed “no reason all” to ask to race by the defendant because case did an not involve interracial Nevertheless, wishing crime. all inquiry, to foreclose such the court ruled as follows: I’ll to ask the as to whether have you race would influence permit question any [juror] a fair to reach verdict. If there is an ability impartial
answer further I requires elucidation, course, will additional permit inquiry. judgment This was with Supreme consonant Court’s view Ross, the law this area. In Ristaino U.S. (1976), Supreme L.Ed.2d 258 Court held that questions process compel due does not except about racial bias *99 “[rjacial in which inextricably up cases issues ... were bound 596-97, 1021, with conduct of the trial.” Id. at 96 at S.Ct. However, 47 at 264. present- L.Ed.2d under the circumstances Ristaino, ed in with the defendant accused of interracial violent crimes, required Court questioning would about have racial power” supervisory bias “under over courts. federal Id. at [its] 9, 9, Further, 597 n. at 47 n. 96 S.Ct. 1022 n. L.Ed.2d at 265 9. require questions the states were “free to or allow demand- Rosales-Lopez ed the Constitution.” Id. v. United States, 182, 191, 1629, 22, 451 U.S. 1635, 101 S.Ct. 68 L.Ed.2d (1981), courts, Supreme 30 held Court that in federal denial requested inquiry prejudice of into racial constitute would re- versible error “where the circumstances of the case indicate possibility that is a there reasonable that racial ethnic might prejudice jury.” have influenced A plurality Rosales-Lopez explained Court the result in 308, 470, States, Aldridge v. United 283 U.S. 51 75 L.Ed. S.Ct. (1931), Ristaino, supra: 1054
245
Aldridge
together
and Ristaino
that federal
trial courts must
fairly imply
make such an
when
a defendant
of a
inquiry
accused
violent crime
requested by
and where the defendant and victim are
of
members
different racial or ethnic
groups. This
rule is based
and consistent with
supervisory
the “reason-
upon
able
standard” articulated above.
It
possibility
remains an unfortunate fact in
our
against
that violent crimes
members of other racial or
society
perpetrated
groups
ethnic
U.S. at
often raise such a
192,101 S.Ct.
at
possibility.
[451
1636,
at
L.Ed.2d
31.]
The Court held
petitioner
that because the
had been tried for
immigration
violence,
law violations rather than
crimes
special
existed,
because no other
circumstances
neither the
powers
nor supervisory
required inquiry
Constitution
into racial
192-94,
1636-37,
prejudice.
Id. at
Most
in Turner
U.S. -,
Murray,
106 S.Ct.
1683,
(1986),
case were not
bound
with the conduct of the
Ross,
trial.” Ristaino
424
v.
U.S. at
96
at
S.Ct.
defendant, victim,
only
judge to accede to the and direct request pose simple questions pointed prejudice element of involved. [137 N.J.Super. specific 131.] question Whether failure to ask the constitutes an abuse of discretion, held, depends the court on the facts of the case. Id. itself, Long nothing crime, In in the nature of the “milieu” of community, pretrial publicity made the court’s failure case, error. In reversible Id. at 132. this as in Long, the among absence of racial overtones either the defendant and victim, witnesses, legal or the defendant and inor issues supports raised either side judgment. the trial court’s in Long, contrast to the defendant the three black male Sims, defendants in 140 N.J.Super. (App.Div.1976), State attempted stood trial for the murder of two police white offi- Appellate ques- cers. Division held that those facts made concerning prejudice appropriate, tions racial and ordered the questions requested to ask if trial court such on a retrial granted part grounds. on other Id. at 173. is distin- Sims *101 guishable case, however, from the instant because Ramseur’s crime was not interracial.
We are sensitive to of reality prejudice, the racial and to the possibility jurors may prejudge a defendant because of his race, her even in the absence of an interracial crime. Racial prejudice operate, instance, may for when the defendant simply black regardless because the defendant is black and of the victim’s color. We must particularly be sensitive to this capital in possibility a Supreme case. As the recog Court has nized, “[bjecause range of discretion entrusted a jury to in a capital sentencing hearing, there is a unique opportunity prejudice operate racial but remain undetected.” Turner Murray, v. at-, U.S. 106 S.Ct. 90 L.Ed. 2d at recognized 35. This Court too has role crucial of extensive voir dire weeding in jurors out unfit in cases: dealing Another indeed important, critical, means for with and latent potential bias is the voir dire. The court should consider the more of exhaustive efficacy searching conducting voir dire examinations. in court dire voir regarding should be to the of particularly counsel responsive requests jurors examination of as bias. The prospective court should potential greater willingness consider whether there should a to resolve doubts in excusing jurors favor defendant for cause. in capital Particularly judges cases, trial should exercise care in the voir dire of extraordinary Williams, jurors...... [State (1983) (footnotes N.J.
potential 68-69 omitted).] satisfied, however, areWe that where itself the case overtones, carries no by racial racial are concerns met approach followed the trial court in the instant al case though, requests, where defendant so prefer we would a broad range inquiry. reject er We the defendant’s characterization question “sledgehammer” of the allowed inquiry. By general allowing inquiry into whether racial views would impartiality, by leaving open possibility affect fur it, questioning if ther the initial answer the trial warranted responded general problem racially court prejudiced overtones, jurors. Because the case itself no carried racial no limiting questioning; there was abuse of discretion so allowing nor would there have more been abuse extensive questioning. case, Under the circumstances in this the trial approach court’s cannot be said to deprived have defendant of *102 right impartial his to an jury, if searching even a more inquiry usually requested. advisable when Qualification D. Death
Defendant contends Jersey’s process that New of “death qualification” deprives capital right defendants of the to an impartial jury provided by as the federal and state Constitu- tions. He also contends that the trial court’s dismissal of two jurors in his ground case on the they unqualified that were to capital sit in a cause was deprived erroneous and him of his right impartial jury. to an
1. At argument the time of the appeals, of these there was an open question of whether the federal Constitution forbade guilt removal for to cause, of a prior bifurcated phase trial, prospective
jurors strong whose to the death opposition is so it would penalty prevent jurors of their duties as substantially impair at the sentenc performance ing v. [Lockhart McCree, 106 S.Ct. phase 476 tria[l]. U.S. -, -, (1986).] 90 1758, 1760, L.Ed.2d 142 137, Supreme The McCree, Court has since held in Lockhart v. supra, that it does not. Thus defendant’s objec- constitutional rejected tion must be as a matter of federal law. Because I, defendant has based his paragraph attack on Article 10 of our state Constitution, Constitution as well as the federal however, inquiry begin our cannot and end with Lockhart. We must qualification review the evolution of the death doctrine and arrive at our judgment own on this matter. Illinois, 510,
In Witherspoon
1770,
v.
391
88
U.S.
S.Ct.
20
(1968),
Supreme
L.Ed.2d 776
Court held that exclusion of all
jurors
express
who
scruples” against
“conscientious
the death
violates a
right
impartial jury.
defendant’s
to an
“A
opposes
man who
penalty,
the death
no less than one who
it,”
said,
favors
the Court
discretionary judg-
“can make the
ment
entrusted to him
obey
the State and can thus
the oath
519,
juror.”
1775,
he takes as a
Id. at
at
S.Ct.
Such are referred as “Witherspoon excludables.” McCree, at-, Lockhart v. 476 U.S. process L.Ed.2d at 143. The selection that eliminates
“Witherspoon excludables” panel from the is referred qualification.” question “death Id. The that Lockhart had to *103 was process qualification resolve whether the of death that is necessary capable jury following judge’s select a of the capital phase instructions in the of sentencing the trial results seating jury in the of a uncommonly prone that is in to convict guilt phase. Arkansas, by the The issue legisla arose because decision, tive judicial provided enactment and in had for the use capital unitary i.e., a jury, jury during cases of a that sits both guilt penalty phases. reliability validity The and support qualified” juries studies the conclusion that “death likely are more extensively convict were reviewed Supreme accepted, pur Court in The Court Lockhart. “for poses methodologi opinion[,] that the are both studies [the] cally adequate in qualification’ valid and to establish that ‘death produces juries fact ‘conviction-prone’ somewhat more than at-, ‘non-death-qualified’juries.” at 90 Id. S. Ct. at L.Ed.2d 147.
The Court does not nonetheless held that Constitution prohibit juries capital from death-qualifying states cases. death-qualification vio Court first concluded that did not jury late requirement the fair cross-section a because process did of distinctive systematic not involve exclusion a at-, 1764-66,
group
community.
in the
Id.
106 S.Ct. at
group
“Witherspoon
at 147-50. The
excludables”
L.Ed.2d
significantly
groups previously recognized
differs
from the
distinctive,
minorities,
such as women and racial
because the
“Witherspoon
group
excludable”
is identified as the result of
activity “designed
legitimate
concededly
an
to serve the State’s
obtaining single jury
properly
impar
interest in
a
that can
tially apply
guilt
the law to the facts of the case at both the
sentencing phases
at-,
of a
trial.” Id.
at
S. Ct.
emphasized,
The Court also
that death
deprives capital
right
impartial jury.
defendants of their
to an
at-,
1766-70,
Id.
106 S.Ct. at
at
L.Ed.2d
150-54.
its
view, if the
required
Constitution
a certain mix of individual
i.e.,
viewpoints,
prone
those less or more
to convict on a
particular jury,
required
then courts would
undertake the
balancing
at-,
difficult task of
jury.
each
Id.
at
S.Ct.
emphasized
Illinois had
slanted” the
so that
‘when it
swept
from the
expressed [any] scruples against
all who
capital punishment ...,
neutrality
line of
State crossed the
[by] producpng]
willing
jury uncommonly
(cid:127)
(cid:127)
(cid:127)
to condemn a
*104
”
1768,
at-,
man to die.’
Id.
251 We find the protections that regarding qualifica death tion afforded under the Jersey New Constitution are differ no greater ent from or than those under the federal Constitution. We find no distinct tradition of state doctrine constitutional would call for a (see such difference. As previously noted supra 169-170), at Jersey New appear does not unique to have a public penalty. attitude specific toward death question of death qualification the context trial bifurcated is novel, noted, Cohen, but as lower courts have see v. 211 State 544, N.J.Super. (App.Div.1986); Bass, 551 v. 189 State N.J.Su 461, (Law per. Div.1983), 467 this previously permitted Court qualification guilt phases death in trials where the Holland, 451, were (1971). combined. See State 59 v. N.J. We thus find no reason in depart state tradition or doctrine to Lockhart,54 from qualification
Nor do we find that death jurors prior to the guilt phase of a trial offends notions of fundamental fairness. Three support reasons this conclusion.
First,
Legislature
we note that the
has addressed the
developed. Although
fairness issue
the scheme that it has
compulsion
there
no constitutional
be a
there
penalty phase, Spaziano
Florida,
v.
468 U.S.
104 S.Ct.
(1984),
presupposes
The Delaware
Court has noted
it had
a
statutory preference
single jury qualified
established
try
phases
of a
trial
both
and found that
State has
“[t]he
strong
avoiding
repetitive
interest
...
trials.”
v.
Blount
State, supra,
considered the evidence at the
trial. These new
ignorant
prior discussions, running
members would be
afoul of the
concept
jury
through
that a
reach a verdict
deliberations which are the common
experience
jurors.
of all
[/<£]
Fields,
People
See also
35 Cal.3d
673 P.2d
(1983)
Cal.Rptr.
(state
unitary
interest
sufficient to
noncognizable group
persons
exclude
who would automati
cally
against
den.,
vote
death
penalty phase),
at the
cert.
(1984).
U.S.
In we believe the State is entitled to insist on a properly interrogation conducted jurors prior guilt to the phase capital of a trial to determine whether their views on capital punishment substantially will per interfere with the jurors. formance of their duties as Those contemplate duties phases trial, both capital guilt/innocence of a phase and the penalty phase. should, jury We believe that a to the extent it can, reach a through verdict deliberations which are the com experience mon jurors.57 of all qualification procedures 57Defendant also contends that death are invalid eighth According under the amendment to the federal Constitution. to defend- ant, punishments that amendment’s function to insure that criminal accord contemporary decency by procedure
with
standards of
is eviscerated
a
that
2.
Defendant contends that
excluding
trial court
in
erred
jurors
two
for cause under Witherspoon
Illinois,
supra, 510,
1770,
time,
U.S.
S.Ct.
For
L.Ed.2d 776.
some
it was
Witherspoon
thought
that under
prospective jurors could be
jury
only
they
excluded from the
for cause
if
(1)
unmistakably
they
automatically
against
made
clear
would
vote
imposition
punishment
capital
regard
any
might
without
evidence that
be
them,
developed
(2)
at the trial of the case before
or
that their attitude toward
prevent
making
impartial
the death
would
them from
an
decision as to
guilt.
the defendant’s
at 522 n.
at 1777 n.
at
[Id.
20 L.Ed.2d
(emphasis
original).]
785 n. 21
in
Supreme
Court re-examined the test for
prospective juror may
when a
properly
jury
be excluded from a
capital punishment.
based on
about
juror may
views
“[A]
challenged
capital punish
for cause based on his views about
ment unless
prevent
substantially
those views would
impair
performance
juror
of his duties as a
with his
accordance
Texas,
oath.” Adams v.
instructions and his
448 U.S. at
S.Ct. prospective juror
The
proposition
converse of this
obviously
capi
that
expected
jurors
tal
are not
gravity
to demonstrate that the
the task
any
would not have
effect
on
ability
at all
their
to
perform their
explained
duties. As the Court
in Adams:
But neither nervousness, emotional
nor
or con
involvement,
inability
deny
unwillingness
firm
effect whatsoever is
any
to an
or an
on
equivalent
inability
jurors
to follow the court’s
part
instructions
their oaths,
obey
regardless
feelings
of their
about the death
U.S. at
[448
penalty.
at
It is these standards we must test jurors. exclusion of the necessity, two Of a sound measure of reposed discretion must in our trial courts to determine given juror whether a can truly discharge grave well and responsibility or juror’s entrusted whether the on views Judges’ 58The New Bench Manual for Cases Jersey has Capital adopted Adams test: juror must be able to prospective [this] respond affirmatively juror considering ultimate ... Do believe are a that if inquirfy]: you you to be individual views on penalty imposed, your punish- ment would not prevent substantially impair performance your juror as a duties decide [Id. on a of death? your ability 33.] *109 penalty prevent death would substantially or with the interfere performance duty. of that categorically
Jurors must not to prejudge be asked willingness impose their to penalty the death in the case. As noted, significant uncertainty average to be in the expected citizen when to discharge asked the task. Just as we should expect jurors not to “unambiguously” state “with or unmistak they clarity” impose able that would never death penalty, the expect we juror should not the state conscientious to with the willingness clarity yet same a to in a has convict case that been heard. appraisal juror’s
A weighing sensitive of a entire response duty be made trial must the court in its to resolve question the whether juror prejudg has shown bias answering questions. mind, ment in With these concerns in jurors we turn to the voir dire of the two involved.
a. C, court, initially questioned by Juror stated when that he did not think that he could a based on make determination possibility evidence if the existed that the defendant could Upon questioning by receive the death sentence. further court, qualified he his answer state that in certain circum- stances, killing child, such as or torture of a he could return calling a penalty. exchange verdict for the death This then followed: THE COURT: It is correct could reach verdict that would you say is that sentence, call court lesser correct?
ultimately upon impose THE Yes, JUROR: yes. THE COURT: So it is the death that concerns you? right. THE JUROR: That’s feel THE But there are under which could COURT: circumstances you you reach a verdict? THE JUROR: Yes. condemning Knowing THE COURT: it would have the effect of defendant to death?
THE JUROR: Yes. *110 point C, this prosecutor questioned
At Juror who stated religious against he held penalty, that beliefs the death and that person murder, he guilty while could find a he could never impose capital punishment. response Even in coun- dеfense sel, although Juror C stated that he could decide whether aggravating or mitigating weigh factors existed and could them, “I him give penalty.” wouldn’t the death again He added qualification he would return a death if the verdict death brutal of a child was involved. argues
Defendant Juror not because C did state unequivocal opposition his to the penalty, death and did not “unmistakably make “automatically” clear” that he would vote against penalty phase death at the or that he would impartial guilt/innocence phase, improper. exclusion was argument language Illinois, This Witherspoon tracks test, U.S. 88 S.Ct. 20 L.Ed. 2d whose noted, previously by has been Supreme modified later Court cases. We are satisfied that correctly the trial court evaluated juror’s ability perform under duty his Adams.
b. presents The exclusion of M Juror much more difficult C, question. Unlike initially expressed open Juror Juror M an attitude toward the penalty. initially death When asked regarding court whether he penalty, had views the death he “no, responded, Although no.” favoring he stated that as for opposing penalty, it, death he he would not favor also there types stated were certain of crimes that would warrant capital punishment. weigh When he if was asked he could aggravating mitigating possible though factors even consequence defendant, answered, could be the death of a he “I court, don’t think I But in colloquy could.” further with the explanation after fuller aggravating mitigating factors, that, agreed depending case, he on the evidence in this ultimately he could reach a verdict that would lead to condemn- ing the colloquy defendant to death. The concluded: juror THE COURT: And feel that could be a and in certain you say you you
circumstances return a verdict that would lead me to condemn the defendant death. Is that correct? THE JUROR: Yes. right. THE COURT: All probe
Defense counsel then undertook to further and asked Juror M if he appropriate punishment felt that death was the any person time a was convicted of murder. To this Juror-M said: “In say self-defense I would no.” He later included mentally disturbed and alcoholic defendants in the category of *111 those whom he felt should not be sentenced to death. After concerning workings further discussion of the statute and the trial, again Juror M said he fairly weigh aggravating could the mitigating factors. prosecutor then questioning undertook the and asked whether Juror M could return a verdict that condemned the die, replied: defendant to to which he “At the moment I said I actually would have to think about that.” The court then took and, up questioning the in colloquy, reinterrogated an extended juror question being: the the final with juror THE COURT: Do feel could sit as a in this case and reach a you you guilt knowing depending finding, verdict as to or innocence that, upon your leading it could well be the first to the death of this defendant? step jury. THE JUROR: I could sit in the Yes, inquiry, informing the juror The court continued the deadline, know,” “[tjoday juror is the we have to which the said, ultimately actually go along “I don’t think I could the with penalty.” death counsel, court, colloquy
In further defense the between juror, weigh juror properly aggravat- the said that he could factors, ing mitigating although expressed prefer- he his ence not to Defense be involved with case. counsel attempts juror resumed set to determine whether the could personal feelings aside his and follow the law. The court then finally asked: THE COURT: can’t follow law? Do feel that the Why you law is so you repugnant in other morally views, words, law inconsistent with your views on your capital punishment? just—I just right THE Yes. I feel I JUROR: don’t feel about death just something I don’t—it’s within
penalty. me, Your Honor. I can’t. The defendant contends that the by excusing trial court erred M Juror from the because of his on views the death penalty. may appear While print there now the cold of this patience record some lack of questioning juror, in the of this we perhaps are too far removed from the to appreciate courtroom fully exchange developed. it Justice Clifford reminded Gilmore, reality State v. us of this in his supra, dissent N.J. at 547: canWe from an occasional reminder of the profit limitations that our isolation from the courtroom on a full of the imposes trial appreciation dynam- Judge ics. As once it, even best and most Jayne put accurate record of oral is like “a testimony it has neither the substance nor dehydrated peach; Trusky Co., v. Ford Motor flavor of the before it was dried.” peach
N.J.Super. (App.Div.1952). A bloodless record conceals subtle nuanc- although es; we cannot sniff them out, do not often always they escape judges. detection our trial
Here, C, as in the case of ultimately Juror the court had to determine juror’s prevent whether the views could or sub stantially impair performance of his juror duties as a accordance with his instructions and oath. The court’s conduct reflects a sufficiently appraisal capacity sensitive of this juror, might whether its might result was one we not have *112 reached ourselves. We do not find that the court’s exercise of judicial discretion was unconstitutional.
c. Although point, defendant has not raised the we have also plain considered whether there questioning was error in the (She S. parties Juror will be known to the from the trial court proceedings.) originally She too said that she had no on views capital punishment. though Even she said she would not like to weigh aggravating mitigating circumstances, knowing possible consequence of death, her decision would be she at thought thought, however, first she do could it. After further stated, sentence—go along I finally “I don’t think could she upon questioning, capital punishment.” But further with differently, saying: she answered I I have to hear the facts said, listen, I could but like would sit, presented, you I to all the evidence and what not and would have to be know, fair, know, you agree I with rest or not. I have to be fair to
whether of them myself also to the on trial. person Questioned again discrepancy, agreed about the she that she knowing be unable to reach a verdict the effect of her would decision would be to condemn the defendant to death. Although agreeing questioned
Defense counsel then her. law, stated, still, know, you I am she would follow the she “but hesitant when it comes to the final result.” The court informed day final as of that and that it her that her answers would be process. participate needed to know whether she could in this my I point going At that she said: “I’m to retract statement. agreed finally couldn’t do it. Couldn’t.” She with the court strong opposition firmly that her was so held and so that she knowing weigh would be unable to the factors that a conse- quence of her verdict could be to condemn the defendant colloquy ambiguity. death. Further did not resolve although perfectly response, juror final stated that she felt any every fact-finding, capable juror to sit as a and make difficulty making fact-finding knowing that the her was consequence could be death. deciphering the
Again, presents this a difficult case of portray the same juror. of a confused The answers answers M. are not left problems that we noted in the case of Juror We the conclusion that the trial court erred its assessment with juror’s views. V.
Trial Issues Psychiatric A. Defense trial, up first take
Proceeding to the claims of error at we court argument decisions the trial defendant’s two *113 deprived him process of due and effective of assistance counsel respect psychiatric with to his defense.
First, defendant attacks the trial court’s refusal to rule on the issue whether prior defendant’s murder conviction would be admissible evidence until after psychi- one the defendant’s Lewis, experts, atric Dr. had testified. Defendant contends bring that he chose out the conviction direct examina- tion Dr. Lewis he because was unsure whether the conviction
would be admissible. When the court later did rule this evi- dence to be admissible and the State raised evidence in its expert, direct examination jury, of its own according defendant, led was to the erroneous conclusion Dr. Lewis ignored had in reaching conviction findings regarding her psychiatric defendant’s condition.
We find no The error. trial court’s to delay decision its ruling requested until the State prior offer the conviction was not improper. We have against making advised courts evidentiary decisions prematurely. Cary, See State v. 49 N.J. (1967)(“a judge generally trial should not rule on the admissibility particular party evidence until a offers it at trial”); Hawthorne, (1967) (“most State v. 49 N.J. problems evidence are best and most expeditiously settled in atmosphere trial”), and context of the overruled on other grounds, Sands, (1978).59 assuming State v. N.J. Even ruling the court should have made admissibility on the prior testimony, conviction to Dr. Lewis’ the fact is that not, time, object defense counsel did at the to the court’s postpone ruling. predicament, be, decision to his if such it in which defense counsel found themselves was one of their making. own general against rulings course, 59Of admonition premature evidentiary should not force with the same cases. Trial apply courts should feel capital no to adhere to the rule where defendant has shown that compulsion might
his examination of a witness in the of an impaired absence early ruling.
263 by the court’s important, prejudiced not Most defendant was challenge the correctness of the Defendant does not actions. hearing, 8Rule full Evidence reached after a ruling, trial court’s free to was Defendant admissible. prior conviction was that the desired. if he so Dr. Lewis in direct examination raise the issue it was assertion that support tends to the State’s The record the absence of a trial strategy rather than defense counsel’s question not to Dr. Lewis ruling defense counsel court that led conviction; had raised this even after the State prior about witness, did own defendant in direct examination of its matter witness, Ervin, Having Dr. about it. question not his rebuttal prior conviction testimony regarding the not to elicit chosen Ervin, defendant cannot now Dr. or Dr. from either Lewis Accordingly, hold that the trial strategy. we renounce his not an abuse of rule on this issue earlier was refusal to court’s discretion. forced the
Second, that the trial court defendant contends preparations for the though defense counsel’s to trial even case him thereby depriving incomplete, psychiatric defense were counsel. effective assistance of time to to a reasonable
A defendant is entitled Torcía, Procedure Criminal prepare for trial. 3 C. Wharton’s reasonable time 1975). constitutes a (12th What 422 ed. § factors include case. Relevant facts of each depends upon the gravity investigation preparation, time available for counsel, complexity of experience of charge, United defenses, accessibility of witnesses. and the possible Cir.1980). 185, (10th Whether Golub, 189 638 F.2d States v. trial is prepare enough time has had defense counsel court, its decision will question for the trial ordinarily a its discretion. United the court abused set aside unless den., (10th Cir.), 449 797, cert. 800 620 F. 2d Gallagher, v. States (1980); 224, see State 66 L.Ed.2d U.S. A.1945) (whether grant a (E. Tulenko, & 133 N.J.L. court); In of the trial the discretion is a matter for continuance Ass’n, re Elizabeth Educ. N.J.Super. 299 (App.Div. 1977) (“[t]he granting of a continuance is a exclusively matter province within the and sound judge”), discretion of the trial den., certif. (1978). N.J. case, present
Under the say facts we cannot the trial court abused its discretion. Defendant was indicted on September 1982. The February first trial date set was 3, 1983, January 1983. On defense counsel advised the court *115 that medical psychiatric and examinations of the defendant complete, were not postponed and the court the trial date until February February 28. again requested On 14 defendant an adjournment ground on the that delayed weather conditions had the arrival of his doctors. The trial was.postponed date until April objection with no to that date from defense counsel. Although jury began April selection on trial actual did April Despite commence until 25. difficulty some in obtain ing reports experts, written from his defendant did have these reports prior to the April start the trial on presum and ably ample prior had time to that date to communicate with his expert. We resulting thus can find no prejudice from the trial April court’s adherence to the Accordingly, schedule. we hold the trial that court’s scheduling deprive decision did not defend ant of a fair trial. Admissibility
B. of Prior Acts Defendant next contends that the trial court committed re- permitting versible error in present State evidence of his prior Stokes, crimes or threats directed at Asaline the victim. prove
In order to that the attack on Asaline Stokes was knowing purposeful, the State testimony introduced that defendant had on threatened her several occasions. Venus Naylor, grandchild, Ms. Stokes’ testified approximately one murder, years one and one-half before the she witnessed an argument grandmother. between her defendant and Defend- allegedly ant going told Ms. regret Stokes that she “was it.” day, defendant and argument next Ms. Stokes had another friend, had by because Ms. Stokes been visited a male Bradford Venus, According to say Foster. defendant said that he “what yesterday room, was about to come true.” Venus left returned, floor, lying bleeding when she Ms. Stokes was on the from her cheek. testified happened
Venus about two other incidents that three killing. day or four months before the Venus said that one came to the defendant house while Bradford Foster was there and told Ms. Stokes that “he kill her him if would he Later, see—if he see him with her.” defendant came to Ms. and, according Venus, front Stokes’ door told Ms. Stokes herself____” just by “he would kill her and the kids or testimony concerning Venus’ defendant’s actions Ms. toward court, admitted Stokes was the trial after an Evidence Rule 8 hearing, purpose showing for the limited state of defendant’s mind at stabbing. argues the time of the Defendant that this evidence prior should have been excluded because the incidents probative were so remote in time that their value was out- weighed by prejudicial their effect. person past
Evidence that
committed a
crime or
*116
prior wrong
prove
disposition
is inadmissible to
a defendant’s
to
currently being
commit the crime for
he or she is
which
charged.
guard a
Evid.R. 55. This rule seeks to
defendant’s
right
by avoiding
danger
jury might
to a fair trial
that a
jurors perceive
him to
simply
convict
accused
because
317,
person.”
N.J.Super.
be a
141
Sempsey,
“bad
See State v.
(1977).
den.,
(App.Div.1976),
322-23
certif.
Evidence of crimes of just come it is relevant to the issue admissible because weigh or the trial court must motive intent. each case probative against prejudicial of its effect. value the evidence
266 Atkins, 454, (1979). State 78 v. N.J. 461 temporal remote- past wrong ness aof affects probative its value. v. See State Schuyler, (E. A.1907). 75 probative N.J.L. 488 & If the value outweighed by of evidence is prejudice, the threat of the evidence should be excluded under Evidence Rule 4. The court, trial knowledge case, because of its intimate inis position engage balancing best to in this process. Its decisions are entitled to deference are to be reviewed under Atkins, an of abuse discretion standard. See State 78 N.J. at 462. arguments
Evidence violence between a defendant and a homicide victim has in prior Jersey been admitted New cases. Mulero, See (1968) (evidence State v. 51 N.J. 228-29 that defendant beat mother admissible to show defendant’s intent daughter death); when he beat Donohue, to 2 State v. N.J. (1949) (evidence prior beatings wife, of defendant’s victim, murder including eight that years incident occurred murder, prior to admissible to show malice when defendant wife); accused of homicide Lederman, State v. N.J.L. (E. A.1934) (evidence 372-73 beating by & defendant of days husband three allegedly before she beat husband to death scheme); admissible show malice and common State v. Schuyler, supra, (evidence at 488 N.J.L. of altercation between defendant and homicide victim admissible to show though earlier); malice even years altercation ten occurred Slobodian, (evidence State v. N.J.Super. (App.Div.) pistol defendant threatened wife two with months before he her mind), shot admissible to show defendant’s state of den., (1972).60 certif. N.J. 60Arguing prior prior only case law allows admission of threats motive, identify perpetrator by showing the existence of a defendant seems prior disagree contend that threats are inadmissible to show intent. We reading clearly
with this the of cases and note Rule itself that Evidence prior prove allows the introduction of threats to intent as well as motive. case, agree this we do not with the defendant that the should the trial court have excluded evidence of defendant’s prior arguments actions toward Ms. that Stokes. defend prior ant Ms. years had with Stokes one one-half to the stabbing so serious that led to were one an act of violence that lying bleeding. left Ms. Stokes on the floor Defendant’s con tinuing hostility toward Stokes jealousy Ms. over her again contacts with other men were demonstrated the made prior stabbing. threats he three or four months to the conduct an enduring hostility Defendant’s evidences toward Ms. to that Stokes and extent casts doubt on his that the claim stabbing unknowing Ms. of Stokes was and occurred as a result epilepsy. of his we Accordingly, hold that the trial court did admitting its abuse discretion the evidence. Capacity C. Diminished Instructions guilt-phase charge Defendant asserts that the trial court’s on capacity effectively jury diminished coerced a of verdict sought jury capaci- murder. He instruction “diminished ty manslaughter will murder reduce where the defendant is impaired ability found to have suffered to meet trauma his requisite legal mental state for murder.” The stated basis request capacity for de- defendant’s was that “the diminished if mitigation, acquittal,” jury fense is one not of and that requisite had did not conclude that state mind defendant is, “knowingly” “purposely” when killed the he victim—that the offense capacity “mitigate —then diminished would serve to manslaughter, met the regardless of whether defendant specific manslaughter.” required mental state rejected request, court and instead
The trial defendant’s jury charged the as follows: knowing or to murder mental state is purposeful With requisite respect aggravated manslaughter state is a
conduct. As to mental requisite disregard unjustifiable risk. The definition conscious substantial justice is to reckless under the code of criminal states that specifically circumstances nature and actor’s conduct and the consider purpose known him. *118 the under definition defendant must have Further, applicable consciously Thus, you unjustifiable disregarded should that the an risk. find defense of capacity present'in is this case diminished and the State has to failed requisite murder, proving as to sustain its burden the mental state that of is, purposeful knowing aggravated manslaughter, or conduct as to a risk, unjustifiable you obliged conscious awareness an then be would to of acquit respect completely the to the with count one indictment. defendant of added.) (Emphasis defendant, charge, according The effect this of to was to direct guilty deprive a verdict of murder and to him of a disagree. defense. We
The statute that the argu forms basis for defendant’s ment, 2C:4-2, reads: N.J.S.A. Evidence that the a defendant suffered from mental disease or defect is admissible whenever it is did relevant to the defendant not have a prove which state of mind is an element of the offense. absence of the such it be the evidence, defendant had no mental disease or may presumed negate defect which would mind which state of is an element of the offense. or Mental disease defect is an affirmative defense which must be proved by of the evidence.
preponderance obliged Hence a trial court is to instruct jury the consider tending relevant evidence that a did to show defendant not have requisite charged. state of mind commit the offense clear, That the court obligation trial here fulfilled that portion above-quoted charge. indicated in the of jury The properly was instructed that if it did not find that defendant “purpose knowledge,” acted with or it would consider whether guilty aggravated manslaughter. defendant of was court charged: specifically To should of reiterate, find that defendant virtue a mental defect you knowingly go did not kill Asaline are to Stokes, then on to purposely you guilty aggravated manslaughter consider he is whether nonetheless and I charge
will the elements of that offense. argument Defendant constructs an elaborate his around con- capacity” mitigation tention that “diminished is a defense. His argues capacity brief that “the defense diminished [should] permitted be to act as a substitute mens rea of recklessness is, involving manslaughter”—that cases murder or permitted guilty should to find that “defendant of a was manslaughter aggravated lesser included offense of without required consciousness of manslaughter risk the statute’s requires____” mens rea recklessness In cases other than homicide, urges defendant capacity oper- that diminished should ate to “reduce the degree offense to than one a lower charged defendant, approach, says crime.” This would something of the result which attends the use “achieve[ ] *119 voluntary intoxication defense.” argument might
Defendant’s appeal being have some were it legislative body formulating made to a that was a criminal new code. But we deal with our Code as it comes to us. our Unlike law, pre-Code the Code itself require- defines mens rea 2C:2-2; ments Report for all offenses. See N.J.S.A. Final of Jersey the New Criminal Law Revision Commission 40 (1971). offense, a any Before defendant can be convicted he must mind act with one of the states of set forth in N.J.S.A. 2C:2-2(b). is, therefore, There every a state mind for of- fense those liability. save that rest on strict The “mental statute, 2C:4-2, disease or defect” N.J.S.A. makes admissible any proof relevant that defendant suffered from a mental defect, purpose demonstrating disease or for the that defend- ant “did have a state mind which an element of the statute, diminished capacity offense.” Thus under the either negates required particular offense, a the state of mind if successful, or it It provides complete does not. either de- fense, successful, if does or it not. charge
A on a be auto lesser-included offense cannot matically given when defense jury to a of diminished capacity by is raised defendant. The “included offense” statute, 2C:l-8(e), specifically states as to lesser-in N.J.S.A. charge cluded offenses that the court shall not with respect to is a basis an included offense unless there rational convicting for a verdict the defendant of included offense. charged aggravated manslaughter The trial court on this offense capacity case not because diminished could reduce the aggravated manslaughter, from but murder because warranted evidence aggravated manslaughter consideration of jury in the event it unpersuaded was that defendant had “purposely” acted or “knowingly.” determined, trial court agree, and we jurors if knowing did not find purposeful conduct, they appraise should then the evidence to determine whether defendant acted with a disregard “conscious of a substantial unjustifiable risk,” 2C:2-2, N.J.S.A. “under manifesting circumstances extreme indifference for human life,” N.J.S.A. 2C:ll-4—the constituent manslaugh- elements of ter. sum, 2C:4-2, under N.J.S.A. diminished capacity operate offense,
does not
to transform an
only negate
it can
it.
It leads not to a
finding
rational
of some other crime but rather
acquittal.61
to an
Defendant’s
analogy
strained
to the intoxi
unpersuasive.
cation defense is
Warren,
See State v.
104 N.J.
(1986);
Cameron,
State
(1986).
Sentencing Issues conclude We thus that defendant’s conviction of murder for of killing the Asaline Stokes must be affirmed. We turn now to defendant’s contentions that the sentence of death was imposed improperly upon him.
A. Use of Non Vult Plea found jury aggravating that factors by defined c(4)(c),
Section
that the murder
“outrageously
was
wantonly
or
vile,
torture,
or
in that it
depravity
horrible
inhuman
involved
of
mind,
aggravated
battery,”
c(4)(a),
an
and Section
that
murder,”
previously
defendant
been convicted of
out-
“ha[d]
public
may require
particular charge
given
that the
interest
that a
to the
jury,
rationally support
charge,
though
where
facts
such a
even
neither
it;
prosecution
requested
nor the
defense
has
enforcement
important
completely by
law
criminal
is too
to be controlled
conten-
adversaries;
obligation
tions of the
and that the
an
see
court has
to it
jury,
representative
public,
given
that the
as the
all
the facts
possible
might reasonably
all of
offenses that
be found from such
Choice,
(1985) (emphasis
original).]
facts.
v.
[State
98 N.J.
298-99
hand,
position
On the other
there is considerable force behind the
that a
competent
may reject
insanity
any
defendant
the defense of
number
reasons, see,
Khan,
e.g.,
(discuss
N.J.Super.
(App.Div.1980)
State v.
States,
(D.C.Cir.),
den.,
ing
v.
Whalem United
F.2d
cert.
382 U.S.
(1965),
States,
86 S.Ct.
Defendant contests the charge trial court jury that the could consider his 1966 wife, conviction for the murder of his first Ramseur, Rosalind as an aggravating factor under Section c(4)(a). That conviction was based on his non vult plea to an indictment that charged murder, had him with but under which might he have been convicted of either manslaugh- murder or argues ter. Defendant might because he have been con- only victed manslaughter tried, had he jury been could not have beyond found previous- reasonable doubt that he had ly been convicted of murder. disagree
We with defendant and hold that the convic non vult upon tion prior based his plea to the 1966 indictment for murder prove suffices to aggravating factor defined in c(4)(a) Section that he “previously had been convicted of mur Although der.” possible it is if he had contested the charge against him, murder might he acquitted have been murder and instead convicted of and sentenced for the lesser manslaughter, offense of that possibility does not affect the Ramseur’s non vult legal significance of plea. Legislature’s purpose enacting c(4)(a) Section was to
subject those who have been convicted of murder once to the death they if murdering are convicted of again. The Legislature could not aggravating have intended this factor to encompass only convictions based on a verdict and not a non vult those based on plea. thereby It would have exclud- portion ed a substantial of all murder convictions. And its language unambiguous: previously “The defendant has been convicted of questions murder.” While are sometimes raised conviction, about the use of a rarely any question is there about conviction, of a and there simply is none here. It is fact convicted, undeniable that Ramseur was and that he was con- Furthermore, case, victed of murder. ques- this there is no use tion permissible conviction, at all about the this
273 very Legislature may section the has said it be used as an aggravating factor. long
It has been settled that in a criminal cases non plea regarded equivalent guilty plea vult is as the of a to the charge pleaded. which Pometti, defendant 12 State v. N.J. (1953). only 452 This is proceedings true not in the that directly made, of plea arise out the indictment which the is subsequent but also in prosecutions. criminal In State v. Henson, (E. A.1901), N.J.L. & the Court of Errors Appeals question was faced with the whether a defendant a trial homicide could be asked on cross-examination pleaded he whether had non vult contendere63 to indict an ment for petit larceny. After determining that the defendant could question plea guilty have been asked the had the been a plea, the held question proper Court that the was also when the plea plea. had reaching conclusion, been a non vult this the Court stated: of nolo contendere guilty,
The has the same effect as a so plea of far as plea regards proceedings on the indictment. a It is confession for the of the criminal only and does not purposes prosecution, Pr., wrong. & bind defendant a civil suit for the same Whart.Cr.Pl. Btsh.Cr.Pro., 418; 802. § § judgment plea contendere, guilty, A on is in nolo like founded of of subsequent prosecution, manner in a conclusive criminal but in civil suits it guilt against pleading is not such an admission of as to be evidence it. party WhartEv., (emphasis added).] [Id. 783. at 608 § Subsequently, in Schireson v. State Board Medical Exam- of iners, Supreme at N.J.L. Court held that of Board Medical Examiners could the license of a revoke grounds doctor on he had been convicted in federal court involving of turpitude though crimes moral even the doctor had entered pleas non vult and nolo contendere to the crimes. There the Court stated: nolo vult thing. contendere non contendere and a 63A are same plea plea Examiners,
See Bd. (Sup.Ct. Schireson State Medical 129 N.J.L. of (E. 1942), grounds, A.1943). 130 N.J.L. rev’d on other & judgment state is So far as the concerned the of conviction follows as well a contendere guilty. nolo of nolo contendere A plea an plea plea charged. judgment confession offense of conviction follows implied guilty. proceedings as well as a In our plea plea opinion meaning federal constituted court a conviction within the the statute. [Id. *123 (citations omitted).] 208
Although Court of and Appeals Errors reversed Schire just point, this son on Bd. see Schireson v. State Medical of 574-75, (E. A.1943), Examiners, 570, 130 N.J.L. 33 A .2d911 & Hock, that Court soon overruled its reversal. See Kravis 136 A.1947). (E. Hock, 54 N.J.L. A .2d778 & In Kravis v. the Court stated: Following guilty is convicted after both the sentence a of person pleas general nolle though contendere even are there differences in the of purpose If
these the Schireson this case in court not overruled it would pleas. merely great legislature attaining increase the found desired results difficulty by legislation because of the fine niceties woven courts into many spun legislature seem words which clear and to the understandable when statutes (emphasis original).] [Id. are enacted. 165-66 There can be no doubt that indictment to which Ramseur pleaded specifically charged non vult had him with murder. It alleged feloniously that he “did of willfully, his malice kill aforethought Rosalind murder” Ramseur. It did not manslaughter, charged sepa- mention which would have been rately. 3:5-2(a), operative during pro-
Revised Rule
was
which
all
ceedings arising
indictment, provided:
1966
out of the
“A
vult,
may plead only
defendant
non
nolo
or
contendere
not
guilty to an indictment for murder.
In all other cases the
may plead only
guilty
guilty.”
defendant
plea
A non vult
a murder
made
to
indictment
with
possible
knowledge
consequences precluded
of its
the defendant
judgment
contending
after
from
that
conviction
he was
merely
Wall,
guilty
manslaughter.
See State v.
the sentence to be if non an [a ] vult indictment for imposed, plea [to murder] shall be either for accepted, life or the same imprisonment imposed degree. a conviction of murder in the upon second [N.J.S.A 2A:113-3.64] Hence, manslaughter sentence more “not than 2A:113-5, years,” permissible N.J.S.A. would not have been punishment plea for a vult non murder. Ramseur’s sen- tence, a twenty-four years minimum of and maximum of twenty-eight years, was range provided within the for second- degree (“not years”). murder more than 30 N.J.S.A. 2A:113-4. Clearly, punished he was for a conviction of murder. nothing have persuade Legislature
We found us *124 c(4)(a) scope intended exclude from the of Section convictions Therefore, out arising pleas. light of vult non of the foregoing, we conclude that evidence of defendant’s 1966 justified jury finding “previously conviction that he had been convicted murder.” argues c(4)(a) construed,
Defendant
that if Section
is so
it
violates
federal
state constitutional mandate that the
jury finding
a
supports
aggravating
evidence that
of an
factor
capital sentencing
in a
decision be reliable. He cites
v.
Zant
862,
2733,
235,
Stephens, supra,
77
462 U.S.
103 S.Ct.
L.Ed.2d
any
Supreme
which
United States
Court noted that
“
in part
sentence based
on
of a
even
‘misinformation
constitu-
magnitude’
prior
tional
as a
such
uncounseled conviction” must
aside,
23,
23,
be set
id. at
n.
103
at 2748 n.
77
887
S.Ct.
L.Ed.2d
allowing
64The
murder statute
a defendant
portion
previous
escape
guilty
agreed
the death
if
she
he or
entered a
or
not to contest
penalty
plea
charges
was held
See
60
Funicello,
to be unconstitutional.
State v.
N.J. 60.
443,
Tucker, 404
(quoting
v.
U.S.
at 256 n. 23
United States
592,
(1972)),
447,
589,
and indicated that
30 L.Ed.2d
92 S.Ct.
finding of an
death sentence where a
might
it
reverse a
or
“materially
had
on
inaccurate
aggravating factor
been based
24,
n.
n.
at 2748
misleading information.” Id. at 887
S. Ct.
24,
n. 24.
Defendant because wife, court he murdered his the trial underlying fact that to consider his conviction not have allowed should argument aggravating an factor. That that murder as rephrasing of the contention that a to no more than a amounts aggravating following plea not intended as an conviction was factor. of the conviction65 ordinarily will not look behind the fact
We
statutory aggravating
is the
the conviction itself
because
aggravating
as an
By establishing
prior
conviction
factor.
duty to
adequately fulfills its constitutional
factor the State
penalty
persons eligible for the death
and ...
reason
the class of
[to]
narrow
ably justify
imposition
com
of a more severe sentence on the defendant
877,
2748,
guilty
pared
at
at
77 L.Ed.
to others found
of murder.
S.Ct.
[Id.
2d at 249-50.]
fact,
Georgia
specifically approved the
death
Zant
statute,
(1975),
the sentencer
27-2503
which allows
Ga. Code §
aggravating
“prior
information
criminal convic
to consider as
guilty
pleas of nolo contendere.” See
pleas
tions and
255-56;
at
77 L.Ed.2d at
accord
103 S.Ct.
U.S.
1253, 1260(1978),
Watson,
cert.
586 P.2d
120 Ariz.
State
(1979);
den.,
277 State, 341, v. Ark. 430, (1980), den., cert. 605 S.W.2d (all 68 L.Ed.2d (1981) 101 S.Ct. 1750, holding 450 U.S. notwithstanding displacement that its of factual a determina aby jury, guilty plea tion a does result in a “conviction” that properly aggravating an subsequent constitutes factor a case). death agree that—regardless
We of whether it is based non vult guilty plea on a guilt—a or a determination of prior murder “reasonably justify imposition conviction does of compared a more severe sentence on the defendant to others Stephens, supra, of murder.” Zant v. guilty found at U.S. 103 S.Ct. course, L.Ed.2d at 249-50. Of we prior remain mindful that conviction may be used to punishment for prior enhance a later if conviction the conviction was in constitutionally impermissible way. Burgett obtained Texas, U.S. 19 L.Ed.2d (1967). limitation, however, That present is not relevant in the case. suggestion There no anything impermis is here that there was sible, otherwise, vult constitutionally or non about defendant’s plea.
Ordinarily (Sec. statutory right c(2)(d)) the defendant’s any presented” limited, by “rebut evidence the State would be aggravating factor, showing to this to a fact there amendment, prior (or, was no murder conviction since the 1985 permitted proof to a the “identity rebuttal the State’s victim, age relationship, the manner of death and the if any, c(2)(f)). victim to the defendant.” Sec. We have no the Legislature doubt that did not intend to allow the defendant prior trying to attack the murder conviction itself case jury sentencing proceeding. before the our Nevertheless c(4)(a) analysis purpose applied of Section when to this though case convinces us that under some circumstances—even valid, any was conviction obtained without constitutional beyond any may and is infirmity, conceivable attack—defendant *126 permitted unreliability be to show the through of a conviction suggests guilty evidence that he was not of murder. purpose c(4)(a)
The through of Section is to the jury, allow conviction, proof of the aggravating to consider as an factor the fact that defendant committed another murder. The conviction high degree is used because of the reliаbility, of its because of energy the time and spent trying that would prove prior through murder a trial say nothing within a trial—to potential might confusion that result. Those are some of explain the reasons that the usual rule that a conviction is regarded invariably almost proof as conclusive that defendant committed the crime. The same apply considerations to convic- resulting tions pleas. us, however, from The situation before unique. very plea part was entered was of a punishment system by declared unconstitutional the United Supreme States very Court for the plea reason that such a was it, life, coerced because with defendant was assured of therefore, without it he risked plea, death. Such a when combined with other suggesting facts defendant did not commit murder, can cast some doubt about the reliability conviction’s proof that defendant committed murder. To the extent it is unreliable, it Legislature’s fails to achieve the purpose. allow,
We circumstances, therefore will under limited an attack on a resulting conviction from such a plea. non vult We limit those circumstances to the situation in which the non plea vult was entered at a time acceptance when its eliminated possibility sentence, of a death and in which the record— usually of proceedings at the plea—suggests time of the possibility realistic that defendant did not commit murder. For instance, very in this plea case the non vult insulated defend ant penalty, plea from the death proceedings, including and the homicide, defendant’s statement of his suggested version of the possibility manslaughter. circumstances, Under those court, upon defense, the trial motion should conduct a (before preliminary hearing guilt phase—otherwise pro- ceedings on such motion if heard phase before sentencing might unduly lengthen the time phases) between the two con- *127 reliability cerning prior the of the Assuming conviction. the met, foregoing conditions are defendant shall be allowed to testify, support motion, in that he did not commit murder plea and that the sole reason for the was the avoidance even possibility the the death penalty. The of any admission testimony further from witnesses, defendant or other on behalf State, of defendant or the shall be within the sound discretion of the trial court. If the trial court determines from those proceedings and presented, including from the evidence plea the plea proceedings, itself and the no factual basis existed for murder, plea the to State shall sentencing be barred in the proceedings relying upon prior from prove this conviction to aggravating c(4)(a). factor If the trial court does not so deter- mine, but instead finds there was plea a factual basis for a murder, shall prove aggravating the State be allowed the sentencing defendant, factor proceedings. however, at the circumstances, may concerning fact, offer evidence the not the plea bearing homicide and circumstance of the as on weight aggravating to be accorded this In factor. may discretion of the other by trial court witnesses be called rebuttal, or, by the defendant the State. express
We opinion applicability need no on the of these non vult principles particular plea ensuing to this and the conviction, resentencing proceeding since will no there this matter.
B. Trial Court Comments on Evidence right
Defendant trial his to a contends that the court violated by by making fair trial and trial one-sided comments on inaccurately summarizing the evidence and defense testimo- ny during guilt sentencing jury charges at both However, phases. object charges. He did not below to the we objection appeal have considered on it to his find be without merit.
A trial right, court “has the duty, oftentimes the testimony it, to review the upon and comment long so as [it] clearly leaves to the jury the ultimate determination of the rendering just facts and the of a and true verdict on the facts jury] Laws, 159, finds them.” State N.J. [the (1967) (minor inaccuracies of testimony court’s review cured by instructing jurors that their own testimony recollection of governs), reargued, den., 51 N.J. cert. 393 U.S. (1968). L.Ed.2d 384 passing on the propriety of charge,
a trial court’s appellate an court reviews all that was particular said on subject being challenged, Brown, State v. (1965), 46 N.J. reading charge whole, and if on as a “prejudicial error appear, does not then the verdict must Council, stand.” (1967); State v. 49 N.J. see also *128 v. Thompson, (1971) (trial State 59 N.J. court not jury bound to instruct in language requested by party if subject matter adequately in charge). covered
Here, defendant contends that the trial court specifically focused on the State’s evidence to the exclusion of the defense’s conveyed evidence and so jury prejudice to the against the defendant. It is true during guilt phase, the trial court focused on evidence of prior defendant’s crimes and violent acts, but this only explain was jury to the the limited purposes for considered, i.e., which this evidence could be opinion basis for the experts of the State’s that defendant was not insane suffering nor capacity from diminished when he committed Similarly, the crime. during sentencing phase, charge necessarily focused on the fact that the murder had been presence committed in the grandchildren. of the victim’s explained The court jury to the that it could consider this fact only as mind, evidence of depravity defendant’s and that it could not consider children, the effect of the crime on those something to prosecutor which the had alluded in opening his statement. specific
These references were proper and neces sary. If the court had not so focused on these two elements of evidence, jury might have misused them to defendant’s disadvantage. whole,
Taken charge as a is evenhanded. It does not purport survey either Moreover, side’s evidence. the court repeatedly advised the jury that its recollection judgment evidence, rather than the counsel’s, court’s or either were to be determinative.
Defendant also contends that the trial court inaccurately summarized the testimony experts by of his stating they “relied, part, upon prior evidence of violent acts as disclosing insight.” a lack of Defendant states experts that these testi- fied that damage brain insight, caused his lack of and that brain damage probably caused prior his violent acts. He contends that the misleading trial court’s prior identification of violence as the experts’ diagnosis basis of his negated the potentially positive impact of their testimony.
This contention is patently frivolous in that de fense specifically counsel asked the trial court to include the statement challenges defendant now charge.66 in the “The charging guilt phase, 66Prior to in the the court entertained counsel’s suggestions concerning changes proposed charge. it should make in its following colloquy between place: defense counsel and the court took line, Honor, Along your MR. JONES: page you the same on had explained the prosecu- conclusions that Dr. Herman and Dr. Flicker [the experts] violence, prior you tion’s drew from those instances of hadn’t *129 explained the conclusions that Dr. Lewis and Dr. Ervin [defendant’s drew, and, experts] ..., your charge as is noted in Honor's Dr. Lewis and violence, previous Dr. Ervin did know and were aware of acts of did them, they opinion consider but said that would not alter their because of them. Well, that, believe, beyond perhaps THE COURT: Dr. Lewis went I and did, Dr. Ervin too. I’m almost sure Dr. Ervin did also. I think both stated prior that the acts of violence would add to— question JONES: they MR. That’s correct. I believe when I asked the support diagnosis opposed undermining said it would their it. request defendant cannot ... the trial court to take a certain action, upon court, course of adoption by and take his trial, unfavorable, chance on the outcome of the if then very procedure sought urged, condemn the he claiming it to prejudicial.” be error and Pontery, State v. 19 N.J.
(1955).
justify
grounds
error,
To
reversal on the
of an invited
defendant must show that the
egregious
error was so
as to “cut
mortally
rights.....”
into his substantive
Harper,
State v.
N.J.Super.
den.,
(App.Div.),
certif.
C. Shortly Stokes, after defendant stabbed Asaline Newark Po- Byrd lice Officer Andrew arrived at the scene. At trial Officer Byrd testified that he “walking observed defendant quickly” from the raising leg scene and his as if begin he were about to running away. Byrd testified that three times he ordered defendant to finally halt before defendant turned around with a hand, knife in point Byrd revolver, at which drew his forced specifically you put THE COURT: What do want me to in? think, specifically, MR. JONES: I what should be added is the conclu- they—Drs. sion that Lewis and Ervin drew from this was indicative of lack impulsive insight judgment. control or lack of right. diagnosis regard. THE COURT: All I will add their in that Yes, MR. JONES: sir. *130 knife, drop defendant to his and arrested him. Defendant’s Lewis, psychiatric expert, Dr. trial testified at that defendant’s failure to respond immediately Byrd’s to suggested commands he that remained an altered state of consciousness induced seizure; aby psychomotor prosecution the contended that defendant’s conduct evidenced a attempt conscious to flee from murder the scene and undermined killing his claim that the was purposeful knowing. guilt not or In both the the penalty phases, the trial court jury instructed the that it could consider the evidence of alleged attempted defendant’s flight.
Defendant contends penalty-phase that trial court’s charge respect flight with to was respects. erroneous several the penalty phase At the defense on mitigating relied four (1) factors: defendant suffered extreme mental or emotional disturbance insufficient prosecution to constitute a defense to (Sec. c(5)(a)); (2) capacity appreciate defendant’s the wrong- to fulness of his require- conduct or conform his conduct to the impaired ments of the law significantly was as a result of intoxication, mental or to again degree disease defect or but a (Sec. c(5)(d)); (3) insufficient to constitute a defense defendant’s (Sec. (4) age c(5)(c)); any other to factor relevant defend- ant’s character record or to the circumstances of offense (Sec. e(5)(h)). mitigating The defense claims that these factors not properly weighed jury could have been considered or light flight charge. of the court’s Before instructing jury, the court overruled a defense objection penalty-phase charge flight, observing to its on that flight bearing upon to some have extent “would whether the suffering psychomotor defendant was from a seizure at the defendant, killing____” According analysis time this seriously phase, the penalty misconstrued the defense. claims, longer sought jurors it no persuade
defense that during stabbing had suffered seizure defendant prevented forming him from the requisite intent for murder. Rather, sought have find he was defendant *131 man,
a whole of either a mental or an but the victim disease extreme mental emotional disturbance. or however, charge, flight
The trial court’s actual tied the issue explicitly mitigating sought prove: to the factors defendant to legal significance flight For to take on the there must be departure conjunction leaving justify circumstances which in with an present reasonably guilt____ inference that it was done with consciousness of flight] determining You in consider such evidence the defendant’s may [of determining state mind. In other can consider such evidence in words, you wrongfulness whether the defendant had the to the of his capacity appreciate conduct or to conform his to the of the and conduct law also requirements
whether the defendant was under the influence of extreme mental or emotional killing. disturbance at the time of the explicit link flight charge jury’s This between the and the mitigating consideration of reject factors also causes us to argument had, effect, defendant’s that the trial court charged non-statutory aggravating factor, “consciousness of guilt.” guilt The trial court’s reference to consciousness of occurred in the context of its discussion of considerations factors, mitigating relevant to the and cannot be construed as charging an aggravating additional factor. The trial court clearly explained factors—c(4)(a) only aggravating that two c(4)(c)—wereappropriate jury’s consideration, for the neither of incorporated expressed guilt” which the “consciousness of language. flight charge
Defendant contends that the did not belong in penalty-phase the instructions at all. trial Extensive relating evidence to defendant’s mental and emotional condition by during guilt phase was introduced the defense of the trial. This clearly mitigating evidence relates also to factors c(5)(a) c(5)(d), and, fact, by jury was considered determining that relating those factors existed. Factual issues condition, flight to involve defendant’s mental or emotional flight implies presence that defendant to had mind recognize If the need to flee from the scene. believed alleged flight that a link there was between defendant’s and his condition, flight mental or emotional in its would be relevant mitigating Hence, consideration factors. cannot we conclude flight error for the charge given jury. that it was to the be Defendant flight charge contends further heavily prosecution. favored the supplied court short summary prosecution’s regarding factual contentions flight, followed a terse reference to the defense’s contention sought Nevertheless, that defendant denied that he to flee. carefully repeatedly trial court jurors admonished the attempting evidence, it was to summarize the that it would they not tell them what should consider to be salient features of case, and that their own recollections of the evidence were Furthermore, controlling. urged jurors it not to responsibility evaluate, weigh, abdicate their and assess the *132 aggravating mitigating and prejudicial factors. We find no error. agree
Nor can we with defendant’s assertion that the court flight charge failed to tailor the to the facts of the case and the special penalty phase. issues at the It is true that the court gave charge flight, e.g., conventional on the issue of State Sullivan, den., (1964), 43 N.J. cert. U.S. (1966); Jersey Supreme L.Ed.2d 477 see New Charges, Criminal, Jury Jury
Court Committee on Model Model (1980), Charges, appear Criminal 4.152 but it does not that the charge inadequate jury’s was inaccurate or in terms of the probative consideration of the relevance and worth of the circumstances.67 charge argues 67Defendant failed to reflect the also that the trial court’s distinction, recognized charge, in the model between a defendant who denies
flight altogether and one who contends that his actions did not constitute
defendant,
flight.
impression
charge, says
The court’s
that defend-
created
flight altogether,
disputed
implying
ant denied
thus
that the defense
Officer
testimony,
Byrd’s
position was that the conduct
whereas in fact the defense’s
Byrd
flight.
argument
This
mischaracter-
Officer
described did not constitute
contention,
charge. Contrary
the court did
izes the trial court’s
to defendant’s
rather,
charged
charge
flight”;
that "[t]he
that "the defense
‘denied’
it
ha[s]
sought
defense denies that the defendant
to flee.” In the context of the entire
Finally, defendant contends
in discussing
that
mitigating
c(5)(a)
c(5)(d)
factors
flight charge
trial court’s
omitted
part
that
of the statutory language providing that the defend
disturbance,
ant’s mental or emotional
or mental disease or
defect, need not constitute a
prosecution
defense to
to qualify
mitigating
c(5)(a),
as a
factor.
(d).
See Sec.
Defendant cites
English,
(La.1979),
State v.
We are satisfied that under the circumstances the trial court did not commit error when it instructed the that it could consider the flight defendant’s scene, from the murder as this flight related jury’s to the determination of applicability mitigating c(5)(a) c(5)(d). factors D. Constitutionality 2C:ll-3c(4)(c) of N.J.S.A. Applied
Defendant Defendant claims that the facts of this case cannot be fit aggravating within c(4)(c); factor any valid construction of that factor would person not allow a reasonable to conclude beyond a reasonable torture, doubt that the murder “involved charge charge and jury trial, of the did not portion indicate to the defendant denied that he took the actions described Officer Byrd. charge was consistent with the that defendant contested Officer testimony flight. conclusions that Byrd’s defendant's actions constituted necessarily mind, depravity aggravated battery of or an to the victim.”68 that, event, any He also contends instruc- the trial court’s ambiguous confusing tions on this as to leave issue were so effect, result, jury, according uninstructed. The ultimate defendant, free, to jury arbitrarily was that the was left capriciously, to find or not to find that this factor had been proved, precisely the situation that was condemned in Furman 346. Georgia, U.S. 33 L.Ed.2d disagree
We with defendant’s contention that the facts of this c(4)(c) properly case cannot fit within Section defined. And agree jury may that the while we instructions have been deliberations, inadequate guide unnecessary, in its we find it VI(F) (see grounds view of our decision to reverse on other 299-300), to decide deficiency whether this also war- infra claim, rants reversal. nevertheless, We consider the pur- for the pose guidance in other cases. above, interpreted aggravating
As noted we have factor c(4)(c) require showing by pur- that defendant the State posely physical pain suffering to the caused severe mental or prior No better demonstration of the fit victim to death.69 68Defendant also asks this Court to find that even if there was sufficient factor, c(4)(c) jury aggravating evidence to submit Section to the as an against weight jury's finding of the evidence and should of the factor is Reyes, supra, Court be set aside. In State v. 50 N.J. at this therefore rejected proof will be where established that a claim of lack of entirety, viewing evidence in its be that evidence direct or the State’s circumstantial, giving its testimo- the State the benefit of all favorable reasonably ny favorable inferences which could be as well as all of the therefrom, guilt charge beyond a a reasonable could find drawn doubt. reasonable ju- support reasonable evidence to in this case there was sufficient We find that scope ry’s finding the statute. were within the that defendant’s acts aggravated battery. We 69The State claims that the murder involved an possible concerning "depravity any contention therefore will not treat factor, opinion, aggravating purposes this as a mind." We treat this battery aggravated to the victim. involved torture or an claim that the murder *134 aggravating between that definition of the factor and the facts of this case can than by be found the statement the trial court (outside the colloquy course of with presence counsel of the of jury): the aggravated battery upon by I’ve also considered the the victim the defendant. Again, plainly disfigurement, upon there was a there was a brutal attack the consisting many victim stab wounds. defendant then left the scene and according walked the across street. The victim was still alive. Defendant calmly dying the witnesses returned. The victim knew she was and stated so at plainly the time. She was conscious. The fact that the defendant while the grandchildren them, victim was alive threatened to kill her if he could find the killing presence grandchildren fact that the occurred in the the the fact threat, making probably possibly that after this the worst threat could that person, dying made to a the victim was executed. saying regard There is a with to those who are in the armed that forces they you. really they thing
worst can do is kill isn’t That true. The worst can you dying knowing you dying they destroy your do is while are are can immortality, your grandchildren claim to children or and in effect that is the presented by evidence State this case. by clearly Were it not for the threat which was testified to at least one witness, killing presence it were not for the that fact occurred in the grandchildren, knowing were it for the fact the victim was still alive she die, going time, lapse was it were not for fact there some was however brief, victim, when the defendant left the scene returned to execute the perhaps presented jury way the matter would not be to the in the it has been presented greater I anguish. but can think of no cause for mental I can think greater brutality lay dying of no than to threaten the victim as she with the grandchildren. (1967) Beyes intent to kill the Even if State N.J. 454 [».] [50 ] applicable greater required, were not in this case and a that burden were I pattern presented by believe factual here as disclosed me and more importantly presented by plainly aggravat- the evidence would fall within the ing course, jury. factor. Of truth evidence an issue of fact for the finding regard. point I make no in that All I at conclude this is that a finding aggravating reasonable trier of fact could return verdict factor present under the evidence submitted the Prosecutor. differently, Put from these facts a could find beyond Ramseur, pur reasonable doubt that addition to posely killing victim, purposely also inflicted severe mental pain prior her death. analysis c(4)(c), supra 207-209, Our of Section suggests that there is little purposes.
difference between the two these *135 jury the trial court the to the noted that In its instructions respect “does not exist with here involved aggravating factor knowing killing.” gave The court then the or every purposeful telling jury the that in order to find it by essence of the factor beyond a reasonable doubt that the “you must be convinced agonizing and mental upon inflicted the victim brutal defendant quite summary That comes before death.” bodily and harm alone, and, might standing it be definition were close to our require a (although we do not adequate with but little revision harm). also, physical The court finding of mental both (“that however, “depravity of mind” mental state which defined battery aggravated or commit an a to torture leads murder[er] murder”); committing the crime of before upon the victim (“purposely bodily harm to “aggravated battery” causes then of his or her depriving him or her of the member by another body by useless or rendering a member of his or her body byor thereof”). body her or a member seriously disfiguring his or bodily injury,” presumably defined “serious The court then mentioned: “bodily previously harm” referring to the “[t]hat bodily injury which creates substantial defined as term can be permanent disfigurement causes serious risk of death or which bodily any of impairment of the function protracted loss or or permanent, but injuries need not be organ. or member superficial.” rather than must nevertheless be substantial they battery “aggravated the jury told the that Thereafter the court victim, it occur of the must the cause of the death must not be cause of death.” independent of the the death and be prior to “[tjorture occurs when instructed that The court further physical or mental abuse before to serious subjected is victim are aggravated battery and torture death,” “[ijnsofar as may occurring prior to death concerned, only conduct acts and aggravating factor is determining this whether considered present.” the essence jury the understood possible it is
While it, way as we have defined in the same aggravating factor this charge apparent. is in the above potential for confusion the statute, After quoting the trial court never referred to the function, function, or introductory language— lack of the vile, horrible, “outrageously wantonly that the murder was ”; possible or inhuman it ... that the jury, confused charge, simply balance concluded that the murder was vile, either horrible or and that aggravating inhuman factor proven. was therefore aggravated As to what constituted an battery jury injuries would whether “depriv[ed wonder body,” a member of his or her or whether the victim] injuries such only portion rendered member useless. The charge might appear to the related was facts *136 the definition aggravated battery disfig- that linked to a serious urement, although proof there no of was real that other than face, the wound to any proof stab the nor of any loss of a or member use of a A member. further suggested instruction independent either an or meaning an finding added condition to bodily injury,” “serious phrase the equated that the court with aggravated battery. This additional definition was that serious bodily injury “creates “protract- a substantial risk of death” or loss” or “impairment any ed of bodily the function of member organ.” or testimony But there was except no of this either the injuries obvious fact that the did cause death. The confu- sion substantially by here caused the extent to which the evidence, definitions instance, were unrelated to the “[t]he injuries permanent, need not be they but must be nevertheless superficial.” substantial rather than There had been no testi- mony concerning injuries “permanent,” whether the were they whether “superficial.” were “substantial” rather than The “aggravated battery instruction that the the must be victim, cause of prior the death of the it must occur to the death independent of the perplexing. cause death” is There testimony no any injuries was of the upon inflicted “independent victim were If cause death.” the law required finding, “aggravated such a battery” proba- issue bly should not have jury. only been submitted to the The possible claim that injury upon the defendant inflicted victim independent of the cause of death would be his state- ment, alive, made while the victim was still that he would kill future, her children but that of course was not “an aggravated battery.” jury might have understood this as “torture,” but the trial defining court was not torture when it specified aggravated that the battery “independent must be the cause of death.”
It is clear that the pat trial court’s instruction was largely terned after Bass, the decision in State v. 445,
N.J.Super. which in turn followed the United States Su preme 153, Court decisions in Gregg, supra, 428 U.S. 96 S.Ct. 859, Godfrey L.Ed.2d v. Georgia, supra, 446 U.S. 100 S.Ct. 64 L.Ed.2d possible 398. While it is charge beneficial, possible was even unduly that it favored defendant, charge it seems clear that confusing was lacking in clarity necessary satisfy requirement 192-93, Gregg, supra, atU.S. at L.Ed.2d jury’s that the rationally discretion be channeled. What relatively simple charge was needed was a patterned after Assuming our definition. the State claimed c(4)(c) defendant’s fell involving acts within Section either aggravated torture or an battery, the trial court could have instructed the as follows: *137 killing aggravated State claims of Ms. Stokes involved torture or an or both. If find a reasonable doubt that it battery, you unanimously beyond jury then answer shall be to that did, on the sheet: “That this your yes question aggravated charge murder an involved torture or to the victim.” I battery you killing aggravated that in order to find that the involved an must battery, you just killing find that defendant had as his more than Ms. that purpose Stokes, it was his to cause her severe and must additionally purpose physical pain, you goal, find that he achieved that that she did in fact suffer the severe physical he intended her In before death. other in order to find that the
pain words, killing aggravated involved an must find two facts: that battery, you first, defendant to wanted cause Ms. Stokes severe before death, physical pain in second, that fact she suffered that severe as he in intended, physical pain goal. other he succeeded in his words, killing The State also claims that in the of Ms. Stokes defendant tortured her, aggravating c(4)(c) regard and that factor has been in that as well. I proven 292 charge killing in that order to find that the you involved must find torture, you just killing that defendant had as his more than Ms. Stokes, that in purpose psychological addition it was his to her cause severe purpose before her pain goal, he death, that achieved that that did in she fact suffer the severe
psychological he intended before her in death. other order pain words, killing find that torture, involved must find two you facts: that first, psychological defendant wanted to cause Ms. Stokes severe death, before pain psychological that in she second, fact suffered that severe as he pain goal. he intended, other words, succeeded his obviously These instructions should also contain directions to jury to consider all of the circumstances the matter in intent, determining defendant’s isit unusual for a defend- may been, ant state what his intent have and that his state of can only mind be determined from the circumstances.
We no note, intend criticism of the trial court. We as we did supra at among this was the first cases tried Act, under the and that any the trial court was guid- without ance on the construction of aggravating this factor.
E. Concerning Mitigation Instructions
Defendant makes four concerning claims the trial court’s instructions regarding mitigating factors.
Defendant first asserts that the trial court’s refusal to give instructions that were submitted the defendant violated eighth and fourteenth amendments the federal Constitu tion. We find this assertion to be without merit. “It fundamental that a trial court is not bound to instruct a language requested by party. subject If the matter is adequately in the purport covered text and charge, the whole prejudicial no error comes into Thompson, existence.” v. State supra, 411; Green, N.J. see State v. 86 N.J.
(1981); Brown, State v. atN.J. 103. Defendant had right particular “no phrasing select the the jury instruc Gaines, tions in his case.” v. United States 690 F. 2d (11th Cir.1982); Rothbart, see 2d United States v. 723 F. (10th Cir.1983); State, (Miss. Irving So. 2d 1983) (trial properly court refused detailed on instructions miti- *138 defendant), den., gating factors submitted cert. 470 U.S. (1985). 84 L.Ed.2d Defendant’s contention second the trial court failed to explain meaning mitigating of the factors violation of the eighth and fourteenth amendments. The trial court instructed jury following in the manner: purposes you may following mitigating For of this case consider whether the present:
circumstances are First, the defendant was under the influence of extreme mental or emotional disturbance insufficient to constitute a defense to the Prosecution. In order to mitigating you find the existence of this circumstance must determine that the suffering defendant was from an extreme mental or emotional disturbance and that such extreme mental or emotional disturbance influenced him in commit- ting charged. the act with which he is age. Defendant’s Thirdly, capacity appreciate wrongfulness the defendant’s to of his requirements signifi- conduct or to conform his conduct to the was law cantly impaired as a result mental disease or defect or intoxication but not to degree sufficient to constitute a defense to the Prosecution. mitigating you In order to find the existence of this circumstance must ability capacity appreciate wrong- determine that the defendant’s to to [sic] requirements fulness his conduct or to conform his conduct to the of the law significantly impaired by was reason of a mental disease or defect. other words, you disease, signifi- find that must such mental defect or intoxication cantly impaired capacity appreciate right wrong defendant’s to from or to conform his conduct to the law. Fourth, any other factor which is relevant character or defendant’s record or to the circumstances of the offense. Now, respect mitigating charge you you with to this factor I are required anything concerning to consider defendant’s life and characteristics particular you and the circumstances of the crime for which have found him guilty. given by We believe that the instructions the trial court were adequate. despite We first note that defendant’s contention factors, explain mitigating that the trial court failed to mitigating did in fact find that factors existed: that defend- two ant was under the influence of extreme mental or emotional prosecution, disturbance insufficient to constitute defense appreciate wrongfulness of capacity and that defendant’s requirements his conduct or to conform his conduct to the significantly impaired the law was as the result of mental *139 intoxication, defect to a degree disease or or but not sufficient prosecution. a expla to constitute defense to The trial court’s mitigating regarding preclude jury nation did not factors the considering mitigating factor, any aspect “from os a of a character or of defendant’s record and the circumstances of the proffers offense the that defendant as a basis for a sentence Ohio, less than death.” Lockett v. atU.S. (footnote omitted; emphasis L.Ed.2d at 990 addition, In original). jury the trial court instructed the to “any mitigating consider evidence” regarding factors that testimony physical presented guilt phase evidence at the jury phase. could be considered the the For example, charged the trial court as follows: Defendant also contends that was the he under influence of extreme mental or emotional disturbance to insufficient constitute a defense to the Prosecution. determining laboring the whether defendant was under a mental disturbance are to defect, consider the of both the defense and you testimony the State that, witnesses and of includes both the State’s course, the experts experts of the defense. recognize provide
We that the trial court did not a mitigating age definition for the factor of the of the defendant. forty-two years killing. Defendant was old at time sought argue Defendant to inappropriate death was since imposition mandatory thirty-year of parole term without protect society: would at the time defendant would become eligible parole, for he would be old too to constitute a to threat anyone. argument age This addresses defendant’s as a mitigating part “potential factor of his but for rehabilita pertinent tion.” We therefore conclude that mitigating c(5)(c), c(5)(h) factor here is not Section but (“[a]ny Section other factor which is to relevant the defendant’s character or offense”). record or circumstances This Court has allowed the introduction of statistical data assist the evaluating potential an individual’s rehabilitation. State v. Davis, (1984)(statistical indicating N.J. 616-17 evidence likely long defendant was less to commit an after offense prison c(5)(h)). term is admissible under Section We therefore correctly explain conclude that the trial court declined age meaning of defendant within the significance of the c(5)(c). Section position supported by simple language
Our
c(5)(c):
jury may
mitigating
find as a
factor
Section
“[t]he
age
(Emphasis
of the defendant at the time
the murder.”
added.)
language
age a defendant
This
does not consider what
prison.
age
will be when he is released from
We believe
*140
c(5)(c)
recognized
mitigating
should be
as a
factor under Section
relatively young,
only
Eddings
when the defendant is
see
v.
Oklahoma,
116, 102
877,
at
71
supra, 455 U.S. at
S.Ct.
L.Ed.2d
12;
Valencia,
248,
239,
645 P. 2d
242
at
State v.
Ariz.
413,
479, 483,
(1982);
State,
v.
261 Ark.
cert.
Giles
S.W.2d
894,
272,
(1977);
den., 434
However, did the trial court’s instruction under Section “poten- jury may not include whether the consider defendant’s rehabilitation,” possible Supreme tial for violation Oklahoma, 104, Eddings mandate in 455 U.S. Court’s Ohio, supra, 438 71 L.Ed.2d and Lockett v. mitigating that all 98 S.Ct. L.Ed.2d U.S. propri- decline to address the evidence must be considered. We light of our decision ety of the trial court’s lack of instruction (See 299-300.) grounds. VI(F), on other to reverse infra trial court Defendant’s third contention is that the any aspect the defendant’s jury failed to instruct the of the offense could be character or record or the circumstances weight. simply given independent mitigating This claim actually given by the supported by the instructions that were independent the The trial court did not inhibit trial court. mitigating factors: consideration factor, mitigating If evidence has been with any presented are respect you weigh against aggravating
bound the law to consider it and it or factor any factors that have you found be present. [Emphasis added.] concerning We now turn to the final mitigation, claim which arises from the “sympathy” trial court’s denial of a so-called penalty phase, instruction. At the close of the defendant requested that jury be instructed to consider “fairness and mercy” “compassion sympathetic understanding” and mitigating rejected request factors. The trial court jury instructed the it “should decide the case on the any bias, prejudice and, evidence without sympathy or course, conjecture” “cool, without reference to and with calm dispassionate judgment.” added.) (Emphasis Also its charge, the trial carefully explained process by court which weigh aggravating against was to mitigating factors, including an jury might instruction that the consider as mitigating “any evidence other factor which is relevant to the defendant's or or character record to the circumstances offense.” identifying provision Without of the state offended, allegedly federal Constitution that was defendant argues charge rights that the his violated under charters. both disagree. We
Tracking
language
c(5)(h),
the
of
charge
Section
the
jury
mitigation
advised the
to
pertain
consider
circumstances
ing
result,
to defendant.
a
the jury
As
free
consider
was
to
mitigating all
pertaining
evidence
to defendant’s character or
record or the circumstances
the
of
offense. The reference to
“mitigating”
suggests
these factors as
inevitably
jury
that the
may properly
engendered
they
feelings
consider whether
of
sympathy for the
regard,
defendant.
In that
defendant
“[t]he
the
producing
any
burden of
evidence
the
of
existence
[had]
mitigating
]____”
c(2)(a).
actually
Sec.
The instruction
factor[
given by
nothing
prevent
the court did
to
the
from
jury
consid
ering any
Instead,
such evidence.
merely
the instruction
re
generate
encourage
jury
feelings
fused to
the
sympathy
to
mitigating
recognized
unrelated to
by
factors
the Act.
Its
purpose
regard
in this
prevent
arbitrary
capri-
was to
the
and
exercise
ciоus
of discretion
by
jury. The United States
Supreme Court
recently
instructing
has
held that
jury
sentiment,
“not
swayed by
conjecture, sympathy
mere
[to]
did
...”
eighth
violate defendant’s
and fourteenth amend
—
rights.
Court,
Brown,
U.S.-,
ment
v.
California
(1987),
107 Ct.S.
Nor could the jury have confused the parts charge with other it all directed to consider above, mitigating circumstances. As noted specifical the court charged ly jury any that the could consider factor relevant to defendant’s character or record to the circumstances of the charge given charge far from offense. The was different People 1081, 203 680 P.2d Lanphear, Cal.3d (1984), which, Cal.Rptr. 122 in the of a absence direction background, consider defendant’s character or admonished 167-68, at swayed by sympathy. not to be Id. at 680 P.2d (instructions be constitution Cal.Rptr. held to ally inadequate). eighth and
If is one under the defendant’s claim *142 (although are not fourteenth amendments these amendments to), Brown, specifically it fall. v. alluded must California 298 — -, 837, 93
supra,
U.S.
934.
S.Ct.
107
L.Ed.2d
Those
provisions
that
“require
constitutional
the sentencer
... not be
a mitigating factor,
precluded
considering,
any
aspect
from
as
any
of a defendant’s character or record and
the circum-
proffers
stances of the offense that the defendant
as a basis for
Ohio,
death,”
supra,
Lockett v.
a
less than
438 U.S. at
sentence
604,
2964,
98 (emphasis
original),
at
57
at 990
L.Ed.2d
guarantee
by
directing
is not
an
this
violated
instruction
jury
sympathy.70
to decide the case on
evidence without
viewed, we fail to
erroneous the
Thus
find
instruction that the
sympathy,”
jury
any
“should decide the case ... without
...
charge
point
nothing
especially since the
at
had
to do with
attempt
sympathy
simply
charge
jury
but was
an
to
not to
bias,
any
prejudice
sympathy.”71
be irrational—“without
here,
find
possible
While we
no confusion
it is
that this
proper—general
against
jury
traditional—and
admonition to the
regard
Supreme
holding
70We
do not
essence of
in Brown
Court's
resting
modify
on the trial court’s use
the word
''mere" to
the word
"sympathy.”
important
We believe the more
consideration to be whether the
jury
way
ignore
improperly
any
any mitigating
was
directed in
to
evidence. In
jury
any mitigating
Brown
was
allowed to consider
introduced
evidence
Despite
charge
jury
defendant.
the fact
that the
this case instructed the
“any
sympathy,”
decide the case without
we find
the context
...
that in
—
Brown,
at-,
838,
charge,
supra,
941,
entire
see
U.S.
S.Ct.at
93 L.Ed.2dat
discourage proper
mitigating
the effect
not to
was
consideration of
evidence.
propriety
charge
71Wenote that state courts are
on the
a
divided
instruct
California,
ing
jury
disregard sympathy
in death
deliberations.
Washington
Georgia,
jury charge instructing
have held
disregard sympathy
improper. People Lanphear,
in their
is
deliberations
v.
165-66,
1082-83,
123-24;
supra,
Legare
Cal.Rptr.
at
36 Cal.3d
F. Concerning Instructions Deliberations improper Defendant contends that his death sentence was a result of other by several errors committed the trial court in jury instructions penalty- delivered the course of its phase agree deliberations. We with some of defendant’s con- regard tentions this and reverse the hence sentence death and resentencing remand by trial court. Act,
Specifically, defendant that under the a deci- contends by penalty-phase jury sion it unanimity cannot reach is itself by a final verdict and be entered trial must court when announced. Defendant asserts that such a non-unani- mous was by jury verdict reached and should have been accepted court, by the trial therefore he entitled to entry by imprisonment, this Court of a sentence of which is c(3)(c) mandated Section when the is non-unani- under verdict addition, argues mous. defendant that even if the decision (1984), den., S.C. 471 U.S. S.E.2d cert. (1985). L.Ed.2d 170 require jury further was court to to deliberate of the trial supplemental charges were coercive permissible, the court’s leading to resulting unanimous verdict misleading, must reversed. the sentence of death argument defendant’s that the are not convinced We verdict; acted the trial court reached a non-unanimous had *144 therefore, requiring continued deliberation. We properly, defendant, however, supple- trial court’s that the agree with improper. injected instructions were The mental instructions sentencing proceeding. the distinct doses of unfairness into two First, they impermissibly jury to reach a unanimous coerced by incorrectly suggesting different kinds of adverse verdict including by hung jury, consequences that would be caused a performing its civic suggestion jury that the would unanimity; suggestion such a duty properly unless it reached trial, a non-unani- entirely capital in a where statute untrue jury’s permissible a final result of delibera- mous verdict is Second, jury supplemental instructions relieved tions. and instead allowed responsibility for the death decision of full mechanical, simply determining, regard its function as it to weighing regardless of outcome. We calculating, and factors others, errors, may unlike have affected that both these believe errors, case; a for these there is the outcome of this that but sentence would not have been possibility that the death realistic Moreover, regard the first of these errors—which imposed. we already had indicated its effectively prevented jury a that agree returning a final non-unanimous verdict inability to from prejudicial only that the ade- resulting imprisonment—as so imposition is to ban the remedy prejudice to redress the quate penalty on remand. of the death Jury
1. Deadlock the trial court the issue whether
We turn first to reached a non-unan recognize jury that the had indeed failed to imprisonment. entry sentence of requiring of a imous verdict provides: Act c(3)(c)of the Section verdict, jury If the is unable reach a unanimous the court shall sentence the pursuant [providing prison defendant to subsection b for a sentence rather than penalty]. the death From statutory language, Legislature this it is clear contemplated possible three final verdicts case: a in imprisonment, unanimous verdict that results a unanimous death, verdict that results in and a non-unanimous verdict that imprisonment. results in phase
The of this on Monday, May trial occurred 16. No additional evidence was adduced other than documentation prior of Ramseur’s conviction. Counsel delivered summations. court, and, jury charged by p.m., was at 3:20 retired to penalty. p.m., on deliberate the issue At trial 8:40 court jurors stating: “Jury received a note from the unable to reach a Suggestions please.” unanimous decision. communication,
Upon receiving this the trial court informed obligation counsel that it believed its was “instruct the regard with Charge,”72 the A.B.A. Model it intend- objected ground ed to do counsel so. Defense on the that such charge already part original had been included as *145 instructions, argued jurors’ and that fact further the that the they note disclosed “that cannot reach a unanimous is in verdict itself____ fact in of hung jury a verdict and Here a ends the verdict____” any case effectively type as other The trial court nevertheless overruled defense counsel’s ob- proceeded specific jections give jurors supplemental to the required engage them to in instructions further delibera- tions in a order to reach unanimous verdict. The court at the jurors arrangements being same time informed the made to sequester overnight emphasized them court the was attempting pressure jurors. jurors not to the resumed their p.m. approximate- at 9:45 until deliberations continued Czachor, Charge reproduced is 72The ABAModel in State v. 82 N.J. (1980). duty Essentially, jurors to n. it reminds of their consult with one verdict, reaching urging dissenting a view a while another with to unanimous give merely achieving unanimity. jurors purpose not to ly p.m. 11:00 again The court gave jurors hortatory in- structions they before night. recessed for the
The following morning, began the court the proceedings by giving jury further regarding instructions attempts its come to a verdict. Emphasizing that “no one wishes to coerce a verdict,” the court nonetheless added that it “would be remiss were not emphasize importance reaching [it] ... a unanimous verdict.” After these jury instructions the resumed deliberations at 10:20 a.m. It p.m. deliberated until 12:25 Just prior recess, to the lunch again the court encouraged jury “to reach a jury verdict.” The returned from p.m. lunch at 1:25 and returned p.m. its verdict at 1:55
Defendant contends c(3)(c) that because Section provides for a unanimous, verdict that is not the court could not direct the jury to resume further deliberations once the jury had declared that it was unable to reach unanimity. contends, Defendant effect, that a declaration by of deadlock penalty-phase a jury in case is qualitatively “hung” different from a jury in the ordinary involving guilt criminal trial Since, or innocence. by statute, a non-unanimous given verdict can be finality, argues defendant jury’s that a declaration of non-unanimity must by be treated as final the trial court. disagree.
We jury When the indicated its note to the court an inability agree upon verdict, a unanimous trial court jury concluded that the had not deliberated for a reasonable amount of time. It concluded further that “sugges please” tions clearly jury indicated the did regard itself as case, deadlocked. In non-capital jury which a must reach a verdict, unanimous approach this appropriate. See State v. Czachor, (1980). 82 N.J. The American Bar Associa tion’s standards on provide this issue that when the court perceives agree, has been unable to may court *146 require the continuation of deliberations. 3 ABA Standards 15-4.4(b) (2d 1980). Criminal Justice Standard ed. The for not, however, may court “require jury the to deliberate for an length added). unreasonable (emphasis time.” Id.
303 approach here, Such was also appropriate where the court, deciding trial in jury to send for back further deliberation, by length was influenced trial and the complexity penalty of the penalty phase, issue. In the jury issues included difficult determination of whether crime category fit within the of murders that are “outrageously or wantonly vile, c(4)(c). horrible or inhuman.” Sec. In See addi tion, the jury had to assess the defendant’s mental state and decide whether mitigating outweighed aggravating factors complexities, factors. Given these there was no abuse of discretion in the trial court’s that jury decision deliberation of roughly State, inadequate. four hours was Berryhill See v. 442, 685, (deliberations 249 Ga. 291 S.E.2d 694 of more than ten case), den., hours in capital insufficient cert. 459 U.S. 103 317, 74 (1982); S.Ct. L.Ed.2d State, 293 v. 573 Muniz S.W.2d (Tex.Crim.App.1978)(“the exercise of discretion ... will be by judged light the amount jury of time the deliberates in evidence”), den., nature of the case and cert. 442 U.S. (1979).
S.Ct.
not be death. [Emphasis added.] noted, As jury had for several hours. Its note deliberated court, however, only split to the indicated it was but instructions, also asked for situation parroting almost de in the initial for charge calling scribed “further delibera Stаte, respect, tions.” this this case resembles Jones den., (Miss.), So.2d cert. U.S. (1980), approxi jury
L.Ed.2d 300 in which the deliberated mately two then sent out a note hours fifteen minutes and stating: unanimously to a “We the cannot come [sic] *147 shall we do?” Id.
decision—what 992. The court held that equivalent this not the of a note was verdict and the trial court imposing did not error in commit not a life sentence. Id.73 apparent not the jury It is that in fact had reached the point agree it could not where where further deliberations circumstances, would be these perhaps unreasonable. Under explored the jury trial court should have with the whether it genuine had sufficiently deliberated and had reached a stale mate, point any a at which further deliberations would have been counterproductive. We conclude nonetheless that the trial remanding court did not abuse its discretion in the matter to jury the further deliberations. Jury
2. Coercion however, argues, regardless defendant also that propriety requiring deliberations, further the trial court State, (Del.1985), 73Defendant’s reliance on Rush v. 491 A.2d mis Rush, placed. Supreme the Delaware Court death vacated a sentence and imprisonment ordered a of life sentence because the trial court had erroneous which, ly given supplemental jury, instructions to deadlocked after deliberat further, There, ing unanimously however, penalty. recommended the death jury prior the evidence that had fact in reached a deadlock to the supplemental bailiff, jurors, through are instructions unmistakable. The message stating "they sent a the trial court that reach a cannot unanimous strongly opposed they those decision and that who are feel cannot reach an agreement.” Further, court, colloquy Id. at 450. in with the trial the foreman "jurors say opposing viewpoints they stated that there are that cannot have viewpoint changed any jurors their under circumstances" and that the had already signed leaving question verdict sheet while the ultimate blank pending fully further instruction from the court. Id. at' These 451. facts justified that, Supreme holding the Delaware all of the Court's "under circum unequivocal stances” and view of ”[i]n announcement that the was agreement penalty," jury’s unable to reach unanimous as to the death (empha announcement constituted final non-unanimous verdict. Id. at 454 Here, contrast, added). jury’s “unequivocal"; sis note was far from explained, equivocation justified, we have the note these circumstanc es, appropriate. the trial court's conclusion that further deliberations were indication, Rush, jurors strongly There was no as in had held reached opposing any viewpoints they change would under circumstances. prejudicial committed by instructing error jurors engage in further deliberations in strongly impelled terms that them to reach a unanimous agree. verdict. We *148 original
In charge its the trial jury court did inform the consequences aof non-unanimous verdict. after jury But the it announced that could unanimity, not reach gave the court separate three supplemental charges. during At no time these supplemental it instructions did reinform the jury that in cases the permits law the issue of finally resolved by verdict, a non-unanimous and that a non-unanimous verdict would Indeed, result in a imprisonment. sentence of the trial court failed even to jury remind the of the brief in references main charge its possibility the consequences of a non- unanimous verdict.
We hold that the
supplemental
trial court’s
hortatory
charges
Czachor,
were
coercive.
State v.
pressures upon by indirectly upon personal responsibility guilt charge and sense of for the The further intimates that impasse____ dissenting jurors acting not be since another may properly conscientiously similar will be called in a new trial to the identical task and upon perform will ... N.J. reach a on unanimous verdict the same evidence. presumably [82 at 398.] supplemental charges delivered the trial court here were saturated with remarks that offend the Czachor stric- against tures charges which do not “permit jurors to deliberate objectively, freely, and with an untrammeled mind.” Id. 402. Several times the trial court improperly and inaccurately em- phasized jurors to the “importance reaching a unanimous verdict,” e.g.:
you sophisticated enough importance your are to know the role in this case importance reaching and the a unanimous verdict. something Judge I tend to think that there’s that I as a of the law can do for you you reaching to assist a unanimous verdict this case. already you verdict; nonetheless, I’ve told that no one wishes to coerce a I emphasize importance would be remiss were I not to of this case and the importance reaching Indeed, jury system unanimous verdict. our entire presupposes people backgrounds, cultures, that twelve of varied views will consensus____ together you, reason and reach system As I’ve told our *149 presupposes you judge that will be able to reach a consensus and as the of my responsibility part you doing. law it is in to aid in so you, keep thinking perhaps something As I told I you I failed to do to assist verdict____ your reaching in in you wish, a rol[e] consensus of unanimous If you testimony could have read back within reason so that there are avenues perhaps help you that exist which can reach unanimous verdict. [a] These undoubtedly comments jurors coerced the to conclude that a unanimous only acceptable verdict was their alterna- tive.74 argues "implicitly" 74The State that authorizes the trial Czachor court to emphasize importance reaching decision, relying of a unanimous on the following language charge quoted your in duty, the model in “It is as Czachor: jurors, to reaching consult with one another and to deliberate with a view to an agreement.” Czachor, supra, State v. reject 82 N.J. at reading 405 n. 4. We this quoted language of carefully precisely Czachor. is worded to avoid the sought by speaks result duty verdict, State. It not of a to reach a unanimous duty but of a to reaching deliberate with unanimity. a view to Czachor makes quite charge clear "repeatedly emphasizes that a ‘duty’ that agree to on a improper.
verdict” is Id. at 405. Additionally, occasions, on numerous the trial court stated or implied by failing that unanimity, to reach of members jury betraying were jurors their oaths shirking as and their citizens, e.g.: responsibilities as you I seeking pressure you don’t want to think that the Court is to but I must saying point inadequate you be candid in that at you this it is to state that verdict____ your job unpleasant, are to unable reach a I realize but under you you apply oath took are you to follow the law and it to the facts find those to be. facts oath____ going you your obligation I’m to your ask to fulfill under I would you ask return to to the room. you simply evening tonight, I ask would to this rest come back tomorrow willing properly perform your jurors.
fresh and able and to function as equal you your night kept I am thinking confident that will be to oath. Last I ways greater you. you, which I could be of assistance to As I’ve told our consensus____ system presupposes you that will able to reach a you, you agreed promised you Under the that oath was administered to and law, only obey faithfully apply duly would not but our statutes enacted legislature. simply. our Your function in can this case be stated rather You to are make factual determinations assessments from the evi- dence____ necessary you your I although do feel it to advise rol[e] simple. simply aggravating difficult is rather You are to determine whether mitigating present____ are factors you, keep thinking perhaps something you As I told I I failed do to assist your reaching a consensus of unanimous verdict. rol[e] Obviously you reaching verdict, pressure you we do not wish to coerce nonetheless, you sophisticated enough importance your but are know the importance reaching role in case this and the a unanimous verdict. When you jurors your you agreed promised try took oath as the issues in this *150 promised apply case in a fair and reasoned manner. You to the law to the facts you found them to be. only
These remarks been could have understood by failing mean unanimity, jury that to reach was properly performing implied, its function. This remark more over, they agree, jurors that because were unable were
lacking ordinary intelligence. recognized We have that a upon trial court must not make adversely comments that reflect honesty, integrity, intelligence jurors of the in case of a agree. Czachor, failure to supra, See at State N.J. 398-99, 402. addition, emphasized
In the trial court more than once the case, implied amount of time and effort that went into the by failing unanimity jurors respon- to reach would be resources, wasting e.g.: sible for all of those Remember this case is an one. Remember that the trial extremely important gone has over a on substantial of time. Remember the oath that period you again took. It is view that deliberations over a short my relatively period time less than four hours is wholly inadequate. arrangements going after have made Now, those I’m to ask you you continue deliberations. We do not want to waste time in this case. your tonight Further deliberations will proceed____ If wish, could have read back within reason so that there are you you testimony avenues that exist which can reach unanimous verdict. you [a] perhaps help great In we have all sum, invested a deal of time and effort in the case. It a breach would be not to work as hard as can to resolve your duty you judgment. issues the case consistent with conscientious your Czachor,
As noted State v. N.J. 403, implications that a should render a unanimous verdict so as expense prevent to avoid additional a “waste” of time completely improper ordinary and resources are in the even prosecution, actually may criminal where deadlock result in a trial, second trial. where statute a non-unani case, mous verdict constitutes a final resolution such implications only prejudicially completely are not coercive but untrue.
Although
supervisory
we rest our decision on our state-law
power
justice,75
over the administration of criminal
we are
infringe
75This Court has
which
often invalidated
on
procedural practices
right
defendant’s
to be treated in a manner
with
comports
principles
though
fairness,
fundamental
violation has
even
no constitutional
occurred.
*151
guided
by
as
imperative
capital
well
the constitutional
in a
case
jurors
that
made to
understand the ultimate consequences of
Williams,
v.
State
their
(La.1980),
decision.
2d 619
So.
penalty phase jury
the
a
announced
after four
deadlock
hours
of
The
jurors
deliberation.
trial court did not inform the
that if
they
not reach unanimity,
could
the defendant would be sen
imprisonment.
to
tenced
life
found
court
that
the trial
to
jurors
court’s failure
so instruct
the
violated defendant’s
Id.
rights.
federal constitutional
at
explained:
634. The court
present
jurors
fully
consequences
In the
case the
were
of
not
informed
penalties
eventuality. They
their votes and
which
result in
could
each
were
that, by
they
unanimously,
told
their
not
failure to decide
would in fact decide
impose
imprisonment
must
a
that
court
sentence of life
without benefit of
Instead,
probation, parole
suspension
of sentence.
the members of the
body
sentencing
speculate
were left free to
to what
outcome would be in
circumstances,
unanimity.
the event
was
there
not
these
Under
individual
jurors
rationally
disagreement
could
surmise that
in the
event
a new
trial,
sentencing hearing,
perhaps
jury
and
a new
before another
would be
required.
impression
may
swayed
reasonably
juror
join
Such a false
have
a
majority,
convictions,
forcing
rather than
to his
hold
honest
order to avoid
parties,
undergo
proceedings.
and court
witnesses
officials
additional
Consequently, by
jurors
allowing
ignorant
to remain
of the true conse-
recommendation,
quence
unanimously upon
of their failure to decide
the trial
suitably
jury’s
court failed to
direct and
limit
discretion so as to minimize
arbitrary
capricious
imposed
the risk of
action. The death
was
sentencing procedures
under
that created a
risk
it
substantial
that would be
capricious
arbitrary
inflicted in an
manner. [Id.
634-35.]
402;
See,
Czachor,
e.g.,
Tropea,
State v.
82 N.J. at
State v.
N.J.
(1978) (declining
jeopardy
speeding
to hold
double
that
bars retrial of
offense
finding
fairness);
retrial
but
that
was barred
considerations of fundamental
(1975)
Gregory,
multiple
(prohibiting
prosecution
v.
State
N.J.
arising
supervisory power
acts
out
same arrest under court’s
to ensure
justice, although rejecting
fairness in
the administration
constitutional
attack);
Bonis,
(1971) (as
policy,
De
State v.
Relying holdings on the of a number of charge, obliged, even in its initial to inform a trial court is not see, inability consequences agree, of its to capital jury of the 336, State, (Ala.Crim.App.1982), 346 438 e.g., Coulter v. So.2d (Ala.1983); Coulter, parte aff’d sub nom. Ex So.2d 752, (1979); Johnson, 761-62 259 S.E.2d State v. N.C. Commonwealth, 220 Va. S.E.2d Justus v. by
(1980), argues any confusion caused the the State constitute error. cannot be found to supplemental instructions reason that because inform upon by the State The cases relied non-unanimity is itself a final verdict creates ing jury that the responsibility jury to avoid its “open an invitation for Commonwealth, supra, 220 disagree,” Va. Justus v. attaching finality non- statutory mandate to 2d at S.E. court, trial not “an instruction for the unanimous conclusions is State, supra, 438 at 346. jury.” So.2d for the Coulter underlying this reason- premise that the We do not believe chance, way will, easy take the out ing—that given if jurors try and fail agreement—is process even to reach The sound. qualification, oath, of death jurors’ trial court’s designed all jury instructions are to assure that the will make a attempt reaching conscientious follow law its verdict. system capital entire punishment depends on the belief jury representing that a community the conscience of the will responsibly guided deciding exercise its discretion in who shall live and who shall die. To from jury range hide the full options, its sentencing permitting thus its decision be based on and possibly speculation, uninformed inaccurate is to mock goals rationality consistency required modern penalty jurisprudence. death A does “avoid its responsibility” by disagreeing—genuine disagreement is a stat- utorily permissible conclusion its deliberations. See Sec. *153 c(3)(c). states, its other position urged
Whatever merits in
by
clearly
the State is
contrary
policy
Jersey.
to current
in New
1985,
Legislature
amended
death
statute to
require explicitly
jury
that the
“be
informed that
failure to
reach a
sentencing by
unanimous verdict shall result
in
pursuant
L.1985,
court
[i.e., prison
to
subsection b
c.
term].”
178. Ramseur was
in
passage
sentenced
before the
of
would,
this
however,
amendment. This
do
Court
technical
justice
rather than substantial
were we to exclude consideration
in
subsequent
determining
policy
amendment
state
in
this area.
State v. Biegenwald, supra,
at
106 N.J.
63-
Cf.
drawing
65 (similarly
subsequent legislative
on
amendment in
holding
charge
trial
regarding weighing
erroneous
court’s
of
case).76
aggravating
mitigating
capital
in
and
factors
The
jury
76Because the trial court instructed the
in accordance with the subse-
amendment,
quent
apply
we need
whether
not decide
we would
amend-
(1985
supra,
legis-
retroactively.
Biegenwald,
v.
We come remedy. now to the issue of Clearly, coercive and misleading supplemental given instructions such as were in this See, case constitute State, reversible error. e.g., Rose v. (Fla.) 2d (holding So. that trial court commits reversible in giving Allen-type charge error during penalty phase of capital trial), den., 909, 103 cert. 461 U.S. 76 L.Ed.2d (1983); State, Legare 250 Ga. S.E.2d (1983) (same); Williams, see also State v. 392 So. 2d at (trial court’s jury failure to inform ability its to return final non-unanimous verdict “must preju be held to have been dicial”). explained Czackor, As we such instructions cannot be considered harmless error because errors which impact on fundamental substantially directly procedural safeguards, jury the sensitive particularly upon process deliberations, prejudicial are not amenable harmless error rehabilitation. Their effect objective “cannot be measured readily assessment of empirical bearing guilt.”
evidence defendant’s A upon defendant confronted with this prejudice kind of trial error need not demonstrate actual in order to reacquire right (citations omitted).] his to a fair trial. N.J. at 404 [82 singular vice of the coercive Allen-type charge is its purpose actual effect to “undo a deadlock.” Id. *154 trial, ordinary 398. In the jury criminal where a deadlock hung mistrial, results in jury a and hence a remedy for a Czackor violation is reversal of the defendant’s conviction and a new trial. But we believe such a remedy wholly to be inadequate inappropriate capital in a capital case. In a trial, unlike the ordinary prosecution, criminal jurors need verdict; not reach a jury unanimous a true deadlock results not in a mistrial but in a final verdict. Thus the evil of the Allen charge capital in a murder trial infinitely signifi- is worse and cantly prejudicial more in ordinary than an criminal case. latter, deprived defendant is a deadlock that would given have trial; him new in a the former is deprived he of a deadlock that would have saved his life. remedy be must wrong. commensurate with the hold capital
We that where a trial in court a case has erroneous ly given supplemental coercive instructions in violation Cza jury expressed chor to a that has inability agree, its the law must afford defendant the benefit final non-unanimous might verdict that have been returned absent the coercion. Having deprived erroneously been aof substantial opportunity jury resulting imprisonment to receive a in verdict rather than death, may subject not capital the defendant be to another sentencing proceeding. recognize any
We may reversible error a case be said in some sense deprived to have a op defendant of the portunity a jury resulting imprisonment, to receive verdict that nevertheless proper remedy the usual and for such errors reversal death sentence and a of the sentencing retrial proceeding may again which the defendant face the death penalty.77 Biegenwald, supra, See State v. at N.J. (holding may subject that defendant to death on resentencing). is critically But Czachor error different from prejudicial other errors in that definition it occurs after the jury clearly inability has an unwillingness demonstrated bring in an uncoerced unanimous for the verdict death sen has, charge tence. The erroneous coercive simply not as a possible consequence purpose, ending but as its sole the dis agreement jury’s if would save defendant’s life. Even disagreement point has not reached the which further delib- recognize rejected e.g., 77We See, also that other courts have our analysis. Legare (hung jury State, 250 Ga. S.E.2d at 353 cannot be giving charge from the of an "we Allen because with presumed [cannot] say verdict”). assurance that would have reached [unanimous] *155 improper, place take erations would those deliberations must occurs, atmosphere in an free of If coercion. such coercion the possibili- has irrevocably merely defendant a theoretical lost that, error, ty but a jury substantial likelihood absent the the reached resulting imprisonment would have a verdict in rather than death. that, sense, apparent foregoing analysis
It is from in a the remedy the for a capital Czachor in a case is no violation quality ordinary remedy different in from the in an criminal each, in remedy by legal case: determined is conse- quences would have had jury resulted remained dead- case, the ordinary legal consequence locked. of a mistrial; case, capital legal consequence deadlock is a in a imprisonment. is a deadlock Treating way in particularly appropriate the matter this There, case, a the ordinary case. unlike criminal told, jury effect, recognizes must be that the law deadlock as result, permissible statute, a by legal an outcome allowed by imprisonment trial verdict that rather law results than instructed, probability jury, death. The that such so would significantly greater remain deadlocked—if not coerced—is ordinary jury than is the with the properly case that has been preference unanimity. advised of the law’s In these circum- stances, regard intolerably require we would it as unfair to undergo capital resentencing proceeding. defendant to a second supplemental we Accordingly, hold that the instructions were content, implication; language, judg- coercive in that the imposing ment a sentence of death must for this reason be reversed; resentencing and that the case must be remanded for by the trial court.78 On remand the defendant shall not be subject proceed to the death the trial court shall not, therefore, 78We need additional reach defendant’s claims these surrounding coercive were features exacerbated certain of the circumstanc- es, sequestra- poor such as the ventilation room and the trial court’s tion order. *156 jury if the had reached a final non-unanimous verdict.79 See c(3)(c) (providing Sec. that the jury event the is to unable agree, the shall court sentence the defendant a term to of at thirty years parole b). least provided without as in Section 3. Other Errors at Sentencing required is
Reversal
also
because
supplemental
the
instruc-
were
tions
deficient in
vitally important respect:
another
they
may
jury
impression
well have left the
with the
it
that was not
responsible
sentencing
for the decision
defendant
to death.
jurors
the
points
While
were told at various
of the conse-
quences
finding
of a
aggravating
that
the
outweighed
factors
mitigating,
the
supplemental
very
the
charges could
well have
impression
left them with the
simply
that
their task was
fact-
i.e.,
finding
weighing,
finding
and
aggravating
mitigat-
and
factors,
ing
then weighing
and
For example,
them.
in one of
supplementary charges
its
the trial court stated:
although
I do feel it
to advise
that
necessary
difficult is rather
you
your rol[e]
aggravating
mitigating
You are
to determine
simply
whether
and
simple.
weight
are
factors
and
are
them
to
should
find
are
present
you
[sic]
you
they
present.
again, I
Now
realize that
task is a
one
I
difficult
but
your
emphasize
role is
and that is a
at least as it has
to
the law
rather
task
your
simple
merely
apply
79In connection
our
of this
we
case,
that,
with
remand
note
in addition to his
guilty
conviction for the
of
of
Stokes,
murder
Asaline
defendant was found
knowingly
possessing
carrying
and
and
a knife under circumstanc-.
unlawfully
2C:39-5d),
(NJ.S.A.
es not
for lawful use
and of
manifestly
know
appropriate
ingly
possessing
and
a knife with a
to
it
use
unlawfully
purpose
unlawfully
(N.J.S.A. 2C:39-4d).
against
long
another
So
of
defendant
person
augment
course,
was under a
of death,
sentence
of
these convictions could not
however,
that sentence. Our
this
of
disposition
requires
aрpeal,
defendant be
of
with
resentenced
a term
accordance
N.J.S.A.
years
2C:ll-3b, and
of
thus
raise the issue whether
offenses should
may
weapons
merged
with the murder
conviction.
This issue is committed to the
sentencing
Rodriguez,
discretion
on remand. See State v.
97 N.J.
court
(1984);
Arriagas,
(App.Div.1985),
State v.
aff'd on
198 N.J.Super.
(1986).
grounds
other
sub nom. State v. Crisantos,
present weigh are to them. “merely” determining aggravating But in whether mitigating striking them, factors exist and a balance between jury decides whether defendant shall live or die. no jury truly other in the determination criminal law is the more as the community. act conscience of the In no other determina important tion the criminal absolutely law is it more to make aware, jury simply consequences certain the its actions, responsibility judgment. but of total its for the As the Supreme clear, United States has recently Court made *157 capital in instructions cases should the never lead sentencer to responsibility believe that the determining appropriateness of defendant’s Mississippi, death rests elsewhere. v. Caldwell 320, 2633, (1985). 472 U.S. 105 S.Ct. 231 This L.Ed.2d command from premise flows the that the can penalty death be constitutionally imposed procedure the only reliability if assures in the appropriate punishment determination that" ‘death is the ” specific 2637, in a case.’ Id. at S.Ct. at L.Ed.2d (quoting Carolina, at 236 Woodson v. North atU.S. 961). 96 S.Ct. at at L.Ed.2d Jersey’s statute, prior
Under New penalty death any this Court held that instruction that the dilute “tend[s] jury’s sense responsibility passing in the on issue of life or Mount, death” is (1959); erroneous. State v. 30 N.J. Hipplewith, (1960). accord State v. 33 N.J. 319-20 It is apparent apply that rule equal this should with force the under scheme, sentencing current and that the trial court’s instructions here preju violated this rule and hence constituted dicial error.80 however, reject, argument jury 80We defendant’s that the must an make
explicit finding punishment." fully appropriate that "death is an We in are mandated, important, constitutionally objective pur- with accord the indeed portedly namely, proposal, ensuring appropriate served this that death is the penalty-phase A in final error the trial court’s noted, although instructions must also be we need not and do standing whether this error alone decide would warrant charge reversal. This error relates to the trial court’s on mitigating circumstanc weighing aggravating against the the es, charge analyzed that suffered from one of the defects supra, 106 N.J. Biegenwald, State in detail greater jury’s the required that court the trial While 53-67. “beyond a reasonable doubt” process determined weighing Biegenwald find in to be a defi correcting what we (thereby statute), require that ciency original in the the court did not imposed, order for death must find to be aggravating outweigh mitigating factors factors. vari On charge jury, assuming it ous occasions its the court asked the factors, any aggravating found factor or to determine whether aggravating outweighed by mitigat or not factors were ing point charge factors. At one in the it indicated that mitigating factors out sentence would be death unless factors, causing weighed aggravating thereby possibly con- indicates, holding specific punishment we will tolerate in a case. As our above counsel, tending capital jury’s suggestion, from court or to dilute a sense no procedures responsibility sentencing We are satisfied that our for its verdict. jury’s responsibility place: take that no diminution of the sense of will ensure Judges’ Capital Cases advises trial courts to instruct the Trial Bench Manual for fitting jurors they that "the death must be convinced *158 case,” (at case) appropriate punishment least in this in this the verdict sheet boxes, appropriate penalty explicitly jury checked the "the tells the that if it has death,” by jurors individually polled the court to assure that and the are will be circumstances, agrees not In these we do each of them with the verdict. incantation, jurors proposed requiring “we find the to recite the believe that measurably appropriate punishment,” increase their death is an would that Moreover, propos responsibility even if defendant’s for their verdict. sense of harm, good, more harm. it could also do indeed al could be said to do some might give jurors "appropriate” vagueness well the inherent in the term The discretion, undermining prin substantially unguided impression they the have mandated, constitutionally be meted out in a ciple, that the death sentence also Albanese, People arbitrary capricious. 104 Ill.2d See that is not manner den., 441, 456, (1984), U.S. cert. Ill.Dec. 473 N.E.2d (1985). L.Ed.2d fusion as proper to what the balance in any was event. The importance of this may error by diminished the fact that the jury, sheet, on the found, verdict beyond doubt, a reasonable that aggravating the outweighed factors mitigating factors. however, jury, That had been instructed that an affirmative question answer to the next (which on the verdict sheet it did all), not namely, answer at were the aggravating factors and mitigating equal factors of weight, would also result death. There was point therefore any juror no for who felt equal factors were of weight to attempt persuade jurors other of the view, correctness of her since her view apparently Therefore, led to the same result. we cannot neces- sarily assume that the finding special in the verdict sheet rendered the error harmless.81 81Related proof to the resolution sentencing of the State’s burden of at the trial is the provided claim that opportunity defendant should have been closing make jury. the final provides remarks before the Rule 1:7-1 that in a criminal opening trial the State shall make an statement and the defendant shall, chooses, opening if he so make immediately his statement thereafter. provides The rule parties may that at the close closing of the trial “the make statements opening in the reverse justification order of statements." for allowing prosecutor both the heavy first and last word is the burden of proof however, procedure, State bears at applied trial. This same was at sentencing that, argues fairness, defendant's trial and defendant as a matter of he should hung have been allowed the final word when life in the balance. arguments support Defendant offers two of this claim. Because of our holding today proof sentencing, as to the primary burden of defendant’s longer pertinent. argued contention is no Defendant had that because at the penalty trial the proof, statute relieved the State of its normal burden of there justification allowing was advantage no the State the of the first and last Today word. requires we hold that the Act the State at the trial to prove beyond aggravating outweigh reasonable doubt that the factors mitigating Accordingly, respect factors. proof with to the State’s burden of we distinguish guilt do sentencing proceeding. trial on from a many jurisdictions Defendant’s second contention is that have abandoned giving procedural advantage this common-law rule this to the State. He notes the federal courts prosecution, allow a defendant to close after the although allowing prosecution a chance for final rebuttal. Fed.R.Crim.P. point, given 29.1. More on several states have statute the defendant the right closing argument penalty phase to the final capital proceeding. at the of a See, e.g., 17-10-2(a) (1982); Ky.Rev.Stat. 532.025(l)(a) § Ga.Code Ann. § *159 G. Prosecutorial Misconduct argues
Defendant also
to
right
that his
a fair trial was
by
violated
various
prosecutorial
instances of
misconduct. We
are satisfied from our review of
record
that extended
treatment of
of
allegations
several
defendant’s
necessary,
since
alleged
magnitude
the misconduct
is not of the
that would
require us to
deprived
conclude that defendant was
of a fair
trial.82 Our
of
review
the record
two
discloses
instances of
misconduct that should be
prosecutor’s
discussed—the
cross-ex-
(1985);
630.5(111)(1986);
15A-2000(a)(4)
§
N.H.Rev.Stat.Ann.
N.C.Gen.Stat. §
(1983);
however,
(1976). Where,
proof
§
S.C.Code.
16-3-28
the burden of
penalty phase,
remains on the State at the
this is
even where
a lesser burden
doubt,
proving
aggravating
beyond
than
of
existence
factors
a reasonable
arguments.
other states have
refused
reverse the order of
See Mo.Stat.
565.030(4) (1984) (State
trial;
opens
and closes in a
State has the
doubt);
proving aggravating
beyond
burden of
factors
a reasonable
Collins v.
State,
8,
13,
(1975) (because
prove
259 Ark.
531 S.W.2d
State must
doubt,
aggravating
justify
beyond
right
factors
death
a reasonable
State has
open
close),
grounds,
on
vacated
other
429 U.S.
97 S.Ct.
50 L.Ed.2d
(1976);
Commonwealth,
(1978)
see also Smith
219 Va.
Prosecutors a in our criminal justice system. duty The primary prosecutor of a is not to convictions, obtain justice but to see that is done. State v. Farrell, 99, Thus, (1972). 61 N.J. 104 duty is as much his “[i]t to refrain from improper produce methods calculated a wrongful conviction every legitimate as it is to use means to bring just a (quoting about one.” 105 Berger Id. at v. United States, 78, 88, 629, 633, 295 U.S. S.Ct. L.Ed.
(1935)). duty not, however, preclude prosecutor This does the making “vigorous presentation from a and forceful of the case____” Bucanis, den., State’s State v. 26 N.J. cert. (1958). U.S. L.Ed.2d 1160 When prosecutor’s conduct, reviewing a we are that mindful criminal “charged atmosphere trials create a frequently ... [that] prosecuting makes it arduous for attorney stay the within the propriety.” orbit of strict Id. regard
With prosecutors due to the difficulties face in bal- ancing responsibilities, conclude, these we a careful after re- record, prosecutor view of the entire the that in this case did exceed proper the bounds of in his conduct cross-examination of Dr. in his at penalty phase. Lewis and summation the Lewis, cross-examining prosecutor Dr. made several providing statements that can construed as his personal guilt. opinion about Dr. defendant’s He asked Lewis (i.e., prosecutor’s) whether anything she knew about his qualifications Then, background homicide cases. while questioning her interpretations about her actions defendant’s following stabbing, thought her he asked whether she prosecutor her “common sense” than was that of the better investigated who had two “tried hundred criminal cases and disguise inquiries thousand.” These in the comments ex scope ceeded of proper cross-examination.
A prosecutor course, may, of challenge opin expressed by ions above, witness. In the quoted comments however, prosecutor placed his credibility, alleged own expertise, against expert, forcing jury to side with either him or her. Such actions prosecutorial constituted misconduct, violating the prosecutor well-established rule that a may personal not declare his guilt belief a defendant’s such a manner as to lead opinion to believe that his something based on other than the evidence adduced trial. Farrell, 103; Thornton, See State v. 61 N.J. at State *161 380, (1962), den., 816, 38 1710, N.J. 398 cert. 374 U.S. 83 S.Ct. (1963). 10 explained L.Ed.2d 1039 As we in State v. Thornton: jurors reason for the rule is that in the minds of [T]he such statements add may weight knowledge the official and influence and prosecutor’s to personal creating the force of the evidence thus probative adduced, that possibility jurors might consciously view unconsciously adopt prosecutor’s applying judgment without their own to the evidence. N.J. at independent [38 398.] prosecutor when, The improperly also acted in his penalty phase, suggested summation jury’s he that the by protect society deliberations be influenced the need to from prosecutor crime. The stated: gentlemen, are laws made for our and in this case, ladies and we protection must realize that it is our to here has no who responsibility protect everybody interest this case and to out there in the culture of Essex protect everybody from the acts cruel, horrible, inhumane of murder. County Jersey’s prior statute, penalty
Under New death held that we suggesting impose remarks penal- that the must the death ty satisfy responsibility society improper. its to were See 489, Johnson, (1960) (reversal State v. 31 512-13 unneces- N.J. fair). sary because trial as whole was possible Some courts have allowed reference to the deterrent Lewis, 129, penalty. People effects of 88 the death Ill.2d See 895, 904, 1346, (1982) (“prosecutor 58 Ill.Dec. 430 1355 N.EM properly urge imposition could of death as a deterrent murder”), den., 1011, 2307, cert. 73 456 U.S. 102 S.Ct. L.Ed.2d (1982); 16, 1308 500 454 A. Zettlemoyer, Commonwealth v. Pa. 937, (1982), 970, 2444, den., 2d cert. 103 S.Ct. U.S. (1983). however, believe, L.Ed.2d 1327 We that the better rule is that See, such do e.g., references constitute misconduct. -, -, Darden v. Wainwright, 477 U.S. 106 S.Ct. (1986) (comments implying L.Ed.2d 156-57 “that guarantee the death be the only against would a future undoubtedly improper); Zant, similar act” were Tucker v. (11th Cir.1984) (prosecutor’s F.2d “if statement executed, just sleep good, sleep ... I’ll or I’ll [defendant] knowing better one them won’t be on the street” improperly only generalized “serves to arouse the fears of the jurors and divert the focus their attention from character criminal”); State, crime and Jones v. 610 P. 2d [the] [the] 820 (Okla.Crim.App.1980)(improper to state that law enforce shape jurors’ courage ment is in lack bad due and that people [juries] can’t live here if people, these let these “[w]e reason, go killing policemen”). for no around their Statements prosecutor such as those made improper are because they jurors’ divert attention from the facts of the case before them. prosecutor
The determination that the was guilty of misconduct does not end our inquiry. Prosecutorial misconduct ground is not for reversal of a criminal conviction unless the *162 conduct so egregious deprived was that it defendant of a fair (1984) (“While trial. See v. Kelly, State N.J. not conduct, condoning aspects prosecutor’s the all we conclude that, trial, in the context of the entire it did not cause defendant trial”); Tirone, to be a denied fair State v. 64 N.J. (“In
(1974) whole, the context of the summation a we cannot say prosecutor’s that the inflammatory comments so were as to deny trial”); Bucanis, supra, defendant a fair State v. 26 N.J. (to justify reversal, prosecutor’s conduct must “substan tially prejudice the right defendant’s to fundamental have defense”). jury fairly the evaluate merits of his determining prosecutorial whether is misconduct trial, prejudicial and denied defendant a fair we consider wheth- proper objection, made a whether timely defense counsel er court promptly, remark was withdrawn and whether the the the remarks stricken record instructed ordered from the disregard to jury Bogen, the them. See N.J. State (1953). made, usually objection If no the remarks will 141-42 deemed the counsel prejudicial. not be Id. In this case defense cross-examining Dr. objected prosecutor’s to the in comments mistrial, requested objec- Lewis which was denied. No in prosecutor’s made his summation tion was to the comments above. discussed deprived of
We are convinced that defendant was not in the prosecutor’s trial. must be viewed a fair misconduct fourteen-day During of a the court context trial. trial Moreover, objections many the defendant’s times. sustained charged jury that the attor the court statements made Additionally, not neys were to be considered as evidence. aggra only statutory instructed the to consider court Accordingly, vating penalty phase of the case. factors in the above prosecutor’s comments in the instances cited while error.83 improper, they did not reach the level reversible were however, stress, prosecutor’s that the We that the fact prejudiced in case cannot be said have misconduct this in cases way excuses it. Prosecutors defendant no future, this will not hereby on Court are notice of the possible its own motion violations hesitate to refer on appropriate to the governing prosecutors ethical special rules disciplinary action. We are well ethics district committee profession prosecutor’s within double legal aware in law represent vigorously the state’s interest calling—to accused help assure that the the same time enforcement and at suggest are intended 83Our references misconduct prosecutorial adjudicated on the Court has an ethical offense part prosecutor. that this proceedings. Our of that kind can be determined disciplinary Issues only and are us on this record are facts that before conclusions based on the appear to this case limited only. *163 fairly justice uniquely treated and that is done—is challeng- ing. challenge prosecutor’s That is what makes the mission a such difficult one and such an A prosecutor honorable one. willing engage proscribed to in to conduct obtain a conviction in a capital betrays respects. case his in only oath both its Not justice, does he scoff at rather than represents seek he also poorly. sanction, state is uniquely Because death a harsh this necessity Court of readily prejudice resulting will more find prosecutorial capital from in misconduct a in case than other matters; criminal prosecutors seriously who fail take their particularly stringent obligations capital ethical in cases thus strongly postponing, risk jeopardizing, and even the enforce- ment the law. We are prosecutors confident that our will be equal to challenge, this ethical but also ready we stand to take required any whatever action is remedy abuses. Proportionality H. Review trial,
At the time of his defendant would have been automatically “proportionality entitled to review” under Section e. Subsequently, response Supreme to the United States Harris, 37,104 Court’s in Pulley decision U.S. Ct.S. (1984), Legislature L. Ed. 2d 29 amended the statute to provide proportionality only requested. review when L. 1985, c. disposition 478. Our of this case makes it unnecessary to undertake such a statutory review under either scheme.84 84We also a need reach conclusion as whether, claims, defendant his death sentence is excessive" and "manifestly claim, This “inappropriate.” based on Ramseur's character and medical is distinct from claims that history, death is excessive or that this sentence is always when disproportionate with other fact, defendants sentenced to death under the Act. compared In claim raised defendant that death is excessive his case particular appears to be similar to "excessiveness" claims raised cases. non-capital Upon assume, however, we that a analysis contention was intend- disproportionality ed because we find conventional excessiveness review ain inadequate reviewing case. sentence, death courts must adhere to stricter appellate reviewing jury’s findings standard review than in of fact in a non-capital 363-64, trial. In State v. Roth, 95 N.J. at we held that before an *164 Nevertheless, express some appropriate that we now it is concerning important aspect of the this preliminary views so, doing only to process. In we intend death-penalty review the issues exploration in their of some of guide parties future development proportionality of a appear essential to the that satisfy requirements the process that would review obligations. any applicable constitutional statute and 1. Hams, supra, 465 104 S.Ct. Pulley v. U.S. propor Supreme Court held that the United States
L.Ed.2d
by
eighth
amendment
tionality review is not mandated
safeguards against arbitrary
procedural
where there are other
capital punishment
sentencing. The California
capricious
require
was sentenced did
under which Harris
statute
procedural re
Focusing on the other
proportionality review.
statute,
requirement
its
provided by
e.g.,
view mechanisms
findings
circumstances,”
independent review of
“special
court,
appeal, the Court concluded
by
trial
and automatic
constitutionally required.
Id.
review is not
proportionality
that
51-54,
879-81,
at 41-42. Under
at
79 L.Ed.2d
found,
exist
scheme,
adequate safeguards
statutory
the Court
review
sentencing
proportionality
preclude arbitrary
ed to
invali-
prevent
systematic
arbitrariness
not needed to
was
things must be
one of three
find a sentence excessive
court will
appellate
(1)
findings
decision is based are unsupported by
on which the
established:
(2)
incorrect
evidence;
the factfinder applied
credible
reasonably
competent,
(3)
exercising
of the facts to
legal
discretion; or
its
application
principles
judicial
judgment
“shocks the
it
such a clear error of
the law was
to review a non-capital
as it is
We find this standard
applied
conscience.”
review.
stringent
sentence under
where death is the
sentence insufficiently
grounds,
reversing
it
sentence on other
are
Ramseur’s
However, because we
based.
sentence was
on which his death
review the evidence
unnecessary
judicial
more
be shocked
easily
conscience
however,
may
note,
We
showing
stake. A
when
is at
to death than
liberty
is sentenced
when
person
be required
credible evidence” may
than the minimal
of more
"competent
a death sentence.
sustain
Georgia,
dated
Furman
408 U.S.
92 S.Ct.
2726,
Proportionality
entirely unique
review
a function
has
among
proceedings
capital proceeding.
the review
Propor
review,
tionality
capital sentencing scheme,
the context of a
appellate
is not
review to
aggravating
ensure that the
factors
*165
outweigh beyond
factors,
a
mitigating
reasonable doubt all the
¿.1985,
178,
c.
dispro
to determine if the death sentence is
portionate
the crime in
of
against
violation
the ban
cruel and
punishment.
disproportionate
unusual
That death is not
in the
being
punishment
presumed
sense of
a cruel and unusual
is
by
Harris,
the nature of the review. Pulley
supra,
v.
[Proportionality similar circumstances reached under reach a similar result to that one case will longer man live on the basis man die and another case. No will one in another If a defendant the basis of sex. live and a man die on or a woman race, light decisions of the other can review that case this Court die, sentenced great. the discretion Thus, is too whether or not the and determine punishment Georgia, in Furman v. until charged controlled and channeled can be judgment rather than an sentencing reasoned becomes a matter of process Dixon, (Fla.1973), cert. So. [State 2d 1, at all. exercise in discretion Florida, *166 94 nom. Hunter v. U.S. 295 den. sub 40 L.Ed.2d 1950, 943, (1974).] through which to a means therefore is Proportionality review pre- thereby to and imposition of death sentences monitor the imposing the death in impermissible discrimination any vent penalty.
2. mandatory, and longer is no review proportionality While defendant,” request of the “[u]pon the only shall be undertaken are defendants who L.1985, 478, almost all assume that c. we request such review. to death will sentenced Harris, states have been “the Pulley in After the decision Rodriguez, review.” proportionality design their own left to Jersey: An in New “Proportionality Review Apicella, Perlin & Process,” Sentencing Capital in the Indispensable Safeguard Rutgers (1984) (hereafter “Proportionality L.J. Re view”). provides Act guidance. us with little It states that Supreme “the Court shall ... determine whether the sentence is disproportionate imposed cases, to penalty in similar considering both the (Emphasis crime and the defendant.” added.) e. Sec. We foresee that our efforts proce to devise a dure of adequately protect review will defendants from the arbitrary capricious imposition penalty prohib and of the death ited Furman v. Georgia, supra, 408 U.S. S. Ct. evolving process. L.Ed.2d will be an In addition to involving justice experts, criminal these may efforts involve experts disciplines from outside the law. We shall seek the experts process. advice of such to assist us in this preparation process, for parties this review those expect who in participate appellate process in review begin future cases gathering necessary should the data proportionality of a comparison review death in Moreover, similar and crimes defendants. these statistics will helpful determining be gender whether there is and race discrimination the imposition penalty. of the death issues, review, These are difficult and hence sensitive reflection, analysis and modification of develop may we be required Nevertheless, more gathered. information is there appear general principles problems concerning pro portionality anticipate review that we will be addressed in the analysis. Many of thoroughly these issues been have discussed Review,” “Proportionality supra, 15 Rutgers L.J. Liebman, “Appellate A Critique Review Death Sentences: Review,” Proportionality (1985)(hereafter 18 U. C.D.L.Rev. 1433 Review”). “Appellate
First, we
must determine what will be
“universe
cases,”
Review,”
“Proportionality
Rutgers
L.J.
441, against
comparison
imposed
which
death sentence
*167
made,
in
proportionality.
will
order to assure
Some states
require uniformity
merely
such as
Louisiana
death sentences
basis,
county-
parish-wide
on a
or
Sonnier,
see State v.
379 So.
1336,
(La.1980).
2d
Others such Georgia
as
require state
uniformity.
wide
Gregg
See
v. Georgia, supra, 428
at
U.S.
205-06,
2940,
But
adopt
a decision to
comparisons
statewide
does not end
analysis.
We must also decide whether to include in the
statewide universe of
only
cases
those which a
penalty
death
was actually imposed, or
expand
potential
cases for
comparison to include all
those which the
death
could
requested by
have been
a(l), (2).
the State. See Sec.
Here we
may anticipate considering whether to address concerns about
possible
prosecutorial
misuse of
presented
discretion
to the
state,
courts of
including
this
in the review all cases in which a
prosecutor had the discretion to seek the
penalty.
death
See
132, 147,
McCrary,
(1984)
State v.
97 N.J.
478 A .2d339
(permit
ting
judicial
prosecutorial
limited
charge
review
discretion to
Act);
Powell,
murder authorized
Foley
under the
&
Prosecutors,
“The Discretion of
Judges,
in Capital
and Juries
Cases,” Crim.Just.Rev.,
Fall
at 16. But
State v.
cf.
Campbell,
(1984)
.2d
(reject
WasA
691 P.2d
942-43
ing argument
prosecutorial
penal
discretion to seek death
ty
arbitrary imposition
sentence),
den.,
invites
cert.
(1985).
U.S.
105 S.Ct.
Third, the crimes after similar to the case on identified, review compare are we must those defendants with the one before the court. Sec. e. We will need to determine underlying relevant necessary characteristics to insure con sentencing. sistent aggravating mitigating factors set c(4) forth c(5) in beginning. Section and Section are a But other race, sex, factors such might socioeconomic status also be appropriate reviewing proportionality. considerations supra. Moreover, See Powell, Foley & relationship be victim, tween the defendant and pleaded whether defendant guilty or guilty, and the race and sex of the victim might also Id. This list appropriate only factors. beginning is and still other factors could proportionality be relevant review of process the defendants. Our in task this will tobe sift through these factors to determine those have an effect on sentencing decision. We must ensure that discriminatory shifting factors are not the balance between life and death.
3. The proportionality provision review impor- the Act is an procedural tant safeguard against arbitrary mechanism to and capricious imposition of the penalty. death Within the outlined, hope framework develop analysis we an that as- sures similar prevent results similar cases and will discrimi- impermissible basis, to, including, nation on an but not limited race and sex.
We
acknowledge
must
at
paradox
the outset an inherent
process.
Our
recognized
paramount
Court has
theme
sentencing process
of our criminal
punish
that the
crime,
ment must fit the
not the criminal. State v. Yarbough,
631;
Roth,
N.J.
State v.
supra,
But the
Court has categorically rejected
uniformity in
blind
the sentencing
defendants.
Carolina,
Woodson v. North
supra,
428 U.S.
96 S.Ct.
2978,
Conclusion It is not pass for this Court to on the wisdom or the ultimate morality of the death penalty. That Legislature issue is for the Governor, and the and for them alone. Our function is to determine whether their implementing decision and the law it constitutional, are and thereafter to review cases which the death penalty applied. We find the Act constitutional in all respects imposition but reverse the penalty death in this case for above, the reasons set forth and remand the matter for resentencing by the trial court in opinion. accordance with this We affirm the murder conviction.
O’HERN, J., concurring in the result. I concur with today upholding the Court’s decision the consti- tutionality penalty of the death under our state constitution. On this as on probing certain other issues the content of counterpart constitutions, measures of state and federal I do Jersey understanding. discern a distinct New On such issues I believe that the society values our are the shared values of our nation. Our frame of reference is not some abstract notion of civilization or free
government, the American vision. Promises of freedom of but speech guarantees of of the home and the a ban on cruel worship, privacy person, things Rights unusual are in the Bill of because define punishment—these they our our idea of a just Tribe, God Save This Honorable aspirations, society. [L. (1985).] Court demonstrates, opinion As the Court’s delegates to our 1947 Constitution did not capital punishment view aas cruel punishment beyond and unusual pale society. of a civilized I say cannot that the circumstances or the structure of our society changed have so since per challenge that date that a se to the death could be sustained Jersey under the New Constitution. expressed
I have on my another occasion concern about capital punishment whether applied prove will not indeed be cruel and applied *170 unusual the sense that dispropor- it is tionately. 132, (1984) (O’Hern, McCrary, State v. 97 N.J. 149 J., dissenting). That issue Contemporary is not before us. Jersey studies indicate that New yet any has not demonstrated significant disproportionality respect with to the infliction of penalty upon death poor. minorities or the Time will be the ability test of the of act to sustain that I record. Nor can yet agree with Justice Handler’s forecast that the act will * * * inevitably result in death sentences “wantonly that are freakishly imposed” by in the sense condemned Furman v. 238, 310, 2726, 2762, Georgia, 346, 408 92 U.S. 33 L.Ed.2d (1972) (Stewart, J., concurring). 390 interpreted by As Court, legislative “attempted provide scheme to standards for a goals constitutional death that would serve both measured, application consistent and fairness to the ac- Oklahoma, 104, 111, cused.” 455 U.S. Eddings 102 S.Ct. 869, 874, 1, (1982). Supreme L.Ed.2d That the itself Court measured, application has not demonstrated a consistent principle capital Jersey to cases does mean that not New cannot willingness apply or will Our principles not. to our own dispel any fundamental fairness to the before cases us should belief that shall fail employ we “the maximum substantive * * *, procedural protections possible protections that can realistically arbitrary minimize the risk of enforcement.” Post (Handler, J., at 380 dissenting). separately my
I write
express
continuing
view that
juries
death-qualify
guilt phase
at the
trial
capital
of a
inconsistent
New Jersey’s
with
traditional sense of fairness and
justice.
I reach this conclusion not as a
of state
matter
doctrine,
super
constitutional
but in
exercise of
judicial
our
justice
Jersey.
doing
vision over the criminal
system New
so,
quarrel
McCree,
holding
I need not
with the
of Lockhart v.
U.S.-,
(1986),
106 S.Ct.
It is the to define the limits of Court’s function do, they Focusing on the what states can not what should do. power outer of state attention from the inner limits averts question: procedure? is proper what exercise criminal do, but rather question The real for us is not the State can what what we just should do in the exercise of our common law supervisory power practice over criminal jurisdiction. within our
I.
Stripped
analysis
of all
of what
legally cogniza
constitutes a
group
purposes
ble
analysis
of a fair cross-section of
jurors,
McCree,
-,
Lockhart v.
supra, 476 U.S.
106 S.Ct.
1758,
The Lockhart Court nonetheless held that the Constitution does prohibit the states from death-qualifying juries in capital at-, cases. Id. at St. Ct. L.Ed.2d 155. permits The Court that result because it believes that the State jurors entitled to have in the penalty phase who will consci- entiously apply the laws of the state. The Court extends this guilt phase, entitlement to the not because it believes that such produces verdict, a trial a fairer but because it does not believe in the limited exercise of supervision its constitutional over it impose upon criminal trials should state the states the empaneling burden of penalty-phase guilt-phase if the jury cannot sit to resolve the in those cases in it which has convicted of a recognize offense. I that the added insubstantial, burdens are real and are not I but believe that they society are ones willing would preserve to make to justice central value of our system—trial by criminal an impartial jury, prone not one that is more to convict.
II. analyzing question, I approached believe that we have in way noted, the issue a debating, confrontational as I have the outer limits of power. state The has Supreme Court duty determined those. It is by our now be not to distracted that debate but to focus on the essentials of a criminal trial determine, from viewpoint, a common just law what is cause for excusing juror, a why it that death-qualify jurors. is we Holmes has reminded leading us that “whenever trace we a enough back, doctrine substantive very likely law far arewe forgotten to find some procedure circumstance of its Holmes, Jr., (1881). source.” O.W. The Common Law 253 forgotten places capital circumstance that now defend- disadvantage a ants at prior century to this death was penalty many automatic for to only felonies. Juries sat guilt; the death penalty automatically resolve followed from the guilty clearly verdict. Fear that “a who defendant was guilty capital charge of a acquitted would be or nevertheless charge juror’s not convicted of that antipathy because toward punishment,” White, capital Welsh S. Balance 97-98 Life Oberer, (1984)(citing Disqualification “Does of Jurors for Scru- ples Against Capital Trial Punishment Constitute Denial Fair Guilt?,” (1961)), on Issue led to or Tex.L.Rev. statutes religious rulings scruples with “those conscientious against permitted penalty death would be serve White, jurors cases.” Welsh at 98. S. motion, glacier-like set in moved qualification
Once
death
has
capital punishment through
juries
with the law of
eras when
began
guilt
guilt
decide
to this era when
both
separately
penalty.
can be decided
from
continuing
justification
What is the
to death-
common-law
qualify jurors
phase
capital trial? To
guilt
before the
of a
this,
juror
be
why
answer
we must ask
should
ourselves
permit-
in any
Challenges
jurors
excused
case.
for cause to
are
-9,
1:8-3,
rule,
but
ted
statute and
2A:78-4 to
Rule
N.J.S.A.
any guidance
neither
offers
as what constitutes cause for
challenge. That task
left to
has been
the courts. N.J.S.A.
Generally,
may
2A:78-8.
for cause
individuals
excused
from
*173
jury
they
a
because
will
to
oath or
be unable
abide their
follow
Basically,
looking
the court’s instructions.
what
we are
is
jurors
prejudiced
are not
who
biased or
the fulfillment of
(1979).
Singletary,
their duties. State v.
It will seen at once under a that bifurcated trial system “Witherspoon disqualified excludables” are not for bias guilt By they in the of can phase the trial. definition decide guilt fairly opposed conscientiously innocence but are voting validity a fellow citizen to The of death.1 constitutional qualification deeply Supreme death is one divides the that -, McCree, supra, Court. Lockhart See v. U.S. respected journal opinion L.Ed.2d A 137. of sees “rigs against [capital that the A decision matters defendants]. recognize 1I number of who are that there are a small citizens called guilt would in the because of their "nullifiers” who refuse to phase participate against might views vote to the death conscientiously-held acquit penalty guilt injustice agree their because of belief in the I that punishment. guilt such be excluded believe this can should from I persons phase. a be done limited readily pretrial inquiry.
337. system rely juries that must on hardly biased needs opponents to condemn it.” question
I
dwell
death-quali-
need
even
on the
of whether
juries
fied
conviction-prone juries.
point
are
jury
is that a
process
selection
that systematically
jurors
excludes all
who
cannot state a
commitment
the death
results
that,
jury
suspect
although not
for excluding constitutionally
groups,
truly representative
“distinct”
is not a
cross-section of
community
deprives
jury
defendant
peers
his
on
question
guilt
the fundamental
or innocence.
repeat
I
say
this is not to
is
State
entitled to
anything
less than a
is without bias towards its
statutory
established laws
requirements.
Reyn
State v.
olds,
(1965);
Rios,
(1955).
Why we, then why do we continue to do it? And must as a State, approach question continue to in terms of the limits power proper rather than the power? exercise of Our practice procedure criminal shaped by have been more than compulsion. constitutional goal Our has produce been to trials justice. that are fair and result in substantial Thus we have perhaps discovery the broadest rules extant. See R. 3:13-3 and (Pressler 1987) (making “prosecutor’s comment ed. entire file” available to the defendant as a matter right of the defendant’s upon demand, subject legitimate defendant’s to State’s appropriate protective order); and disclosed need for R. 3:17-1 (making any available to defendant statement or record of a in prosecutor’s possession, statement relevant to offense charged, State); made a witness testify about to on behalf of “Report Supreme Committee see also Court on Criminal Procedure,” 449, 459, (1973) (overview 96 N.J.L.J. changes Code). of recommended to Criminal Procedure We do this aas State out of a fundamental sense of fairness—that this game being is not a played truly quest that is but justice—and because “although we believe that a criminal trial inevitably an proceeding, adversarial is above all else a search Fort, (1985). for truth.” State v. 101 N.J.
Hence I approach believe that we should this issue as we approached have countless other issues in the administration of justice system, goal the criminal achieving with the of fair rights accommodations of the of the State and the defendant. having impartial The defendant’s interest is in a fair jury, and preeminent right system. a in our The State’s interest is in having just a and efficient trial of I dispute the case. do not that there are important having values in guilt-phase jury the act as the penalty-phase jury. primarily guided by We must be language the of 2C:ll-3c(l) our statute. presupposes N.J.S.A. that jury there shall one be that shall sit in both penalty and guilt phases good question unless cause be shown. is this: by jury is trial prone that is not good more convict a cause truly for a bifurcated trial? I think that it is. It is hard state a better cause. hand, recognize
On the other I delay, inefficiency, can general and justice system distrust the criminal good are empaneling causes for not separate juries guilt at the and penalty phases. IBut believe that accommodation of these two interests can be achieved without sacrifice of In the either. first instance we know that in almost one-third of the capital cases the acquittal. verdict results in in Thus these guilt-phase time, society saving cases would be expense, the loss impartiality that by empaneling death-qualified is occasioned guilt phase. cases,
In remaining may many, most, it turn out in if not will, fact, guilt-phase instances jurors prove that the in addition, disqualified. explore possibility I would who, jurors, circumstances, use of the in alternate almost all will have through guilt phase capital trial, sat of a would be replace jurors any disqualified penalty sufficient to from the phase. many As in jurors as sixteen are often seated A guilt phase cases. reservoir four will have heard all the disqualified if during evidence and would be available four are qualification. death recognize
I that there are difficult constitutional statu tory problems this consideration whether is “same jury” 2C:ll-3c(l) under statutorily N.J.S.A. that would be constitutionally proceed phase. authorized to to the paramount But since interest this issue resides with defendant, possible it that defendants would concur such a *176 prior procedure Obviously, problems to trial. involved contemplated cannot be insurmountable as our courts have use of a death-qualified guilt that has not been in the phase of a only charged trial where one of defendants two capital with murder. Savage, N.J.Super. State v.
(Law Div.1984). Justice Marshall
has outlined
his dissent in
McCree,
at-,
Lockhart v.
476 U.S.
In attempted circumstances we have not to institute procedures full-scale testing revision of criminal without their efficiency. may It despite majority’s be that even reluc- exploration, tance to undertake such there will be conscientious prosecutors through and defense cooperative counsel whose efforts actual examination of alternative methods of death qualification place. can take Such efforts could result in sub- benefits, stantial both for defendants and for the State. case, qualification, disqualification, this the discursive penalty jurors jurors rehabilitation of death such as M and S highlight might gained qualifica- the benefit that from death noted, guilt phase. M, As tion after Juror in response to dire, clearly the court’s initial voir good stated that he could in guilt return conscience a verdict that lead to would death. Defense desultory eventually counsel then undertook the juror thought destructive examination of the about whether he appropriate death punishment “anytime person was has Quite hesitated, committed a naturally, murder.” Juror M believing that if the act was done in self-defense it should not prosecutor up death. The questioning. warrant then took juror obviously sensing that he was some sort of a wits, again test of cross-fire or when asked the court about this, position running his stated: “You’re like I case truthful- ly say prefer participate.” could I not even to Defendant argues questioning simply the effect of all the was *177 explain juror to the way in which he could be excused from the trial.
It is place difficult for us to ourselves in the position of such jurors. Surely they must be by bewildered the of trail the questions. Notably, has California concluded that process the qualification of death jury itself conditions a to think in terms guilt: typical death-qualifying dire, judge attorneys In a repeatedly voir the and the jurors steps leading penalty the question instruct about the to the trial and each prospective juror, length, concerning oftentimes at considerable his or her capital punishment. repeated displays about attitudes These of concern about penalty guilt any the presented may prompt death before evidence of has been jurors penalty the that infer the court counsel and assumes the trial will occur. penalty contingent guilty finding special A trial is on a verdict and a undergoing death-qualification circumstances. Jurors would have reason to judge personally attorneys infer that the and the believe the accused to be guilty expect jury Only the to come to that conclusion. such an inference jurors explain why energy could serve to the so much time and are devoted to an extensive discussion of before trial. Provided with these cues people only experts presumably from who are not in the courtroom but are also acquainted case, law, with the all evidence in the the and relevant the “correct” application other, death-qualified jurors may of the one tо the themselves guilty charged. [Hovey become more inclined to believe that the accused is 1, 70-71, Superior County, v. Court Alameda Cal.3d 616 P.2d 1348, 168 128, 175 Cal.Rptr. (1980).]
III. I believe that the study Court should itself undertake to the qualification available our process alternatives to current death reliability. and to test their We cannot absolve ourselves of responsibility examining by for not the alternatives reference to the act. The act silent as to when and how death qualifica- present tion shall occur. It is who we have chosen the course. rules, interpreted In this case and our we have the act to achieve fundamental fairness. We should make same at- cost, tempt proves here. it delay, If or the inefficiency practices grave upon of the alternative are burdens justice system, criminal administration least the effort would been made. have pricing
I expediency believe efficiency of trials expense at the of a right defendant’s to be tried before impartial jury an conflicts with our traditional sense of fairness justice. I Stevens, concur with views of Justice concur ring dissenting Florida, 447, 470, in Spaziano v. 468 U.S. 3154, 3167, (1984), 104 S.Ct. 82 L.Ed.2d that history amply jury demonstrates that the is central link to the between capital punishment and decency the standards of contained eighth Gilmore, amendment. State N.J. (1986), recently we restated our commitment to trial ” nearly impartial “as humanity ‘as the lot of will admit.’ (citations omitted).
Ours is a
uniquely
civilization
committed to the value of
*178
human life. Our nation does not view the lives of its citizens as
easily expendable. We do not measure the value of human life
in dollars.
I
society
realize that it is
accept
difficult for
those
shocking
who stand to be convicted of the
and heinous
acts
capital
demonstrated in
murder convictions should ask
society for fair
says:
ask,
treatment. Thus Arkansas
may
“We
why should the
cowardly
contemptible
criminals,
most
of
merely by
crimes,
reason of the viciousness of their
be favored
in jury
greater degree
selection
any
to a
than
other accused
person
any litigant
State,
in a civil case?” Rector v.
385, 395,
168, 173(1983),
denied,
Ark.
659 S.W.2d
cert.
466 U.S.
(1984).
104 S.Ct.
The of deeply society. divides our subject guilt not, of or innocence does not. We should without the fullest examination of might alternatives that ac- law, commodate fair trial with faithful observation of disqualify participation from in safeguard the most revered of a free society—the jury guilt—those trial of conscientious members of a society who do not share majority’s belief that the State may take a human life to the purposes advance of its criminal reasons, justice system. For these I would add to the decision today jurors made with reservations the death about penalty guilt phase capital excluded from the of a trial.
HANDLER, J., dissenting. case, in companion this case of Biegen- State v. (1987), today, decided wald, we 106 N.J. are called upon to consider constitutionality penalty of death at a crucial history moment in the of our cases Constitution. The arise against backdrop heightened of renewed awareness of and sensitivity integrity our State Constitution. This deeper insight into the reach of the State Constitution is con- many by significant development sidered to be the most See, contemporary Pollock, e.g., constitutional law. “State Con- Separate Rights,” As stitutions Sources Fundamental Rutgers (1983). questions L.Rev. The constitutional presented murder-death statute have acknowledged complex. significant they been to be as are Special Project: Constitutionality See “The Death Penal- (1984). Further, ty Jersey,” we Rutgers New L.J. singularly consider role of the State Constitution these important against strong cases tide federal retrenchment *179 from protections rights. well-established of individual These cases, therefore, present challenge and constitutional an both a opportunity. response By yoking
The the disappointing. Court’s State in to the at this time and these Constitution federal Constitution cases, regrettably scope this Court limits the of individual further, protections; progress it we constitutional arrests the by expounding have made in The harm done our Constitution. transcends, failing give to full effect State Constitution to our therefore, incorrectly that which only flows from cases decided. today, its challenge With decision the fails Court to meet the to rights, squanders vindicate individual opportunity and deepen understanding our of the Constitution. upholds
The constitutionality Court capital murder- statute, penalty Ill; death L. c. 2C:ll-3. It N.J.S.A. the legislative concludes that scheme satisfies both federal and standards, including implicating State constitutional those respective prohibiting constitutional doctrines and un- cruel punishments mandating process. usual and due The Court also prosecution concludes the actual and conviction of the were, capital defendant murder under this statute with one exception relating aspect jury to an of the charge on sentenc- ing, determines, free of reversible The among error. Court matters, many qualification other that the selection and of both grand petit juries did violate the constitutional protection assuring impar- a criminal defendant a fair and and, further, jury, tial infirmity that there was no constitutional statutory in by scheme a guilt which defendant’s is deter- death-qualified Court, addition, mined jury. The dis- errors, counts a regarding number other claimed trial-level murder, the use effect prior plea prosecu- of a vult non relating torial testimony misconduct to critical defense and an aspect charge sentencing. of the court’s on reverses, however,
The the imposition Court death sentence. It prejudicial finds in the irremediable error trial court’s coercing instructions that had the effect of into reaching resulting penalty. unanimous verdict the death myself
I disagreement find many with of the Court’s choose, however, I determinations. with only deal those I important. signifi- matters deem most serious most disagreement cant area constitutionality to the relates murder-death I find it there- statute. essential explain fore to the role of the Constitution in a case such State *180 as this and to examine principles govern that should our understanding application and of the State Constitution. issues,
On the merits of the constitutional I direct attention first to capital punishment whether the statute’s scheme vio- lates the provisions state relating constitutional to cruel and punishment unusual and process by due enhanced New Jersey doctrine I fundamental fairness. then with deal those arising issues out of sentencing defendant’s trial and whose resolution in grounds this case warrant additional for reversal. Certain composition, of these issues relate to selection and qualification grand juries, of the petit and and use of death-qualified jury to guilt. determine criminal Other issues concern the prior relevance and effect of defendant’s non vult plea impact prosecutorial to murder and the upon misconduct defendant’s murder conviction and death sentence and the improper effect of prosecutorial certain comments combined aspects with certain of the sentencing charge trial court’s to the jury.1
Finally, I imper- consider the issue of whether the court trial missibly mandating coerced to reach a decision whether, determines, death as the Court the death ground. sentence must be reversed on this I then address the proper grounds for vacation death sentence.
I.
“sovereign
It is
right
well-understood that this
has the
State
adopt
own
expan-
its
Constitution individual liberties more
sive than those conferred
federal
Constitution.” Prune-
validity
questions—the
proceeding
1There are a number of other
without a
jury,
handling
testimony relating
psychiat
struck
of defense
to defendant's
condition,
evidence,
relating
ric and
mental
the trial court’s instructions
flight
majority opinion.
in the
I do
other matters—that are addressed
not
However,
necessarily agree
the Court’s
of these
with
determination
issues.
my opinion, many of these
do
issues are not determinative.
I therefore
directly
questions.
deal further
with
such
*181
Robins,
81,
74,
yard Shopping Center v.
447
100
U.S.
S.Ct.
2035, 2040,
741,
(1980).
64 L.Ed.2d
Appreciation
752
of their
sovereignity, and of
own
the institutional constraints that the
faces,
Supreme
impels
Court
states
consult their own consti
independent
and
tutions as distinctive
sources of fundamental
Pollock,
rights.
714—15;
35
Rutgers
at
See
L.Rev.
Williams,
Supreme
Legitimacy
“In the
Court’s Shadow:
Result,”
Regulation
Supreme
Reasoning
State
Court
35
353,
(1984); Sager,
389-404
S.C.L.Rev.
“State Courts and the
Strategic Space Between Norms and Rules of Constitutional
Law,”
(1985).2
63
L.Rev. 959
This
Texas
Court has not hesitat
greater protections
ed
its
to find for
citizens
are
than
afforded
See,
Novembrino,
under the federal
e.g.,
Constitution.
State v.
(1987);
Gilmore,
(1986);
2 sitting atop judicial Asa lone court pyramid, Supreme the immense federal Court comparable problems has concerns that are more extreme than within judiciaries; management unhappily state and the concerns interact with the diversity settings in operate. which the rules established the Court must Management clarity, point simplicity, concerns fact-independence, diversity fact-sensitivity. while calls for nuance and
State forced to tutional rules homogenized, dramatically [Sager, supra, at judges operate. from state to confront the state abstracted, It is natural and 975-76 [********] institutional environments and histories that judges’ national vision from which the state, (footnote omitted).] instrumental and that appropriate differ, impulses in that in any one fashioning Supreme judgments vary. state, from the Court is consti- vary protections greater ... than requires.” the federal Constitution Ramos, 992, 1013-14, v. U.S. S.Ct. California 3459-60, (1983).3 77 L.Ed.2d 1188-89 however, majority, persuaded particularly by the reason- ing Gregg Georgia, U.S. L.Ed.2d (1976), 183-184, only half-heartedly consults ante at our require greater protections State Constitution and declines to this State than are afforded death-penalty juris- under federal I prudence. Because believe that the federal decisional law has pursues fundamentally contradictory—per-
lost coherence and haps unattainable—goals, I prece- have no confidence federal *182 guide as a I interpreting unper- dent our Constitution. am adequate Gregg progeny suaded its afford assurance freakishly that the death will “wantonly not be 238, 310, imposed.” v. 408 Georgia, Furman U.S. 92 S.Ct. 2726, 2762, 346, (Stewart, J., (1972) concurring). 33 L.Ed.2d 390 risk—approaching ap- certainty—of arbitrary This substantial plication premises of inconsistent both with Furman jurisprudence, and with this Gregg Court’s state constitutional principle underlying and violates the of fundamental fairness process. due challenge jurisprudence, state
The
constitutional
Justice
written,
jurisprudence
has
“is
... a
develop
Pollock
that will
predictable
more
the-
to and
results of
make
recourse
state
Pollock,
analysis.”
Rutgers
supra,
constitutional law
35
L.Rev.
analyses in
adopted
This Court has
structured
which
708.
is had
to the
Constitution to assess the
recourse
first
federal
e.g.,
3-See,
Commonwealth v.
(1984);
Colon-Cruz,
A.
Contemporary
penalty jurisprudence
federal death
embraces
conflicting goals
anticipated
that were
in McGautha v. Califor
nia,
183, 207-08,
U.S.
91 S.Ct.
28 L.Ed.2d
(1971). Rejecting
argument
726-27
an
that standardless discre
tion in
sentencing
process,
violated due
the Court assert
ed that “[any] attempt
catalog
appropriate
factors [to
guide
could
expand
...
inhibit rather than
scope
discretion]
consideration____
variety
infinite
of cases ... would
general
make
meaningless
standards either
plate’
‘boiler
or a
statement of the obvious that no
would need.” The Court
*183
characterized
“beyond present
ability”
human
the tasks of
identifying
priori
“those characteristics of criminal homicides
and
perpetrators
their
call
penalty”
which
for the death
reducing those
uniformly
characteristics
understandable and
applicable
204,
1465,
language.
Id. at
One Georgia, supra, Furman v. 408 238, 2726, 246, U.S. 33 S.Ct. L.Ed.2d standardless sentenc- ing discretion was held to eighth violate the amendment’s proscription (as of cruel and punishments unusual extended to through the states process the due clause of the fourteenth amendment). impossible It is single to distill a rationale from separate opinions the nine Writing issued Furman. for a plurality years four later in Gregg Georgia, v. supra, 428 U.S. 153, 2909, 859, however, S.Ct. 49 L.Ed.2d Justice Stewart abiding identified the thrust of Furman: “While Furman did not hold that the infliction of the penalty per death se violates the ... ban on cruel and punishments, unusual recognize it did penalty of death is different in any kind from other punishment____ uniqueness Because of the penal of the death ty, Furman held that it imposed could not be sentencing under procedures that created a substantial risk that it would be inflicted in arbitrary capricious 188, an manner.” Id. at Thus, S.Ct. at significant L.Ed.2d at 883. Furman is merging eighth analysis amendment with the fundamental principle underlying of fairness process; due pen because the alty beyond rectification, is severe its proce infliction under risking dures arbitrary application cannot be countenanced. Following Furman’s existing penal invalidation of all death statutes, ty thirty-five passed states penalty new death statutes that purported guide sentencing discretion. These statutes fell categories: into two guided those that discretion effec it, tively eliminating mandating the death in certain cases; guided and those that by attempting, discretion misgivings notwithstanding, of McGautha to enumerate for the sentencer aggravation mitigation deliberative factors in and/or complex offense. in the by Gregg of cases led Georgia, supra, U.S. 49 L.Ed.2d conceptual the Court established the contempo framework of rary penalty jurisprudence federal death by invalidating stat utes in imposi North Carolina and Louisiana that mandated the cases, specified upholding tion of a death sentence in while constitutionality Georgia, Florida, statutes and Texas that guide sentencing enumerated deliberative factors to discretion. *184 350 Texas, 262, 2950, v.
See
428
Jurek
U.S.
96
In concluding mandatory both arbitrary death sen- unconstitutional, however, tences are Court was driven to uphold very guided schemes for it disparaged discretion had or beyond capacity either ineffective human in McGautha. unguided discretion struck down in offered Furman no assurance that uniformly defendants would be treated crimes, according to mandatory sentencing their while the inval- idated in no they Roberts and Woodson offered assurance that individually according would be treated their characters. *185 issue, held, When life is at the Court either extreme is unac- ceptable. requirements consistency The of and individualiza- Court, by contemporary tion identified the as reflected in discretion, guided for acknowledgement schemes are thus an of heightened protections the due a penalty defendant when the he Florida, irreversibly or she faces is severe. See Gardner v. (1977) 430 U.S. 97 S.Ct. 51 L.Ed.2d 405-06 (White, J., concurring) (eighth analysis implicates amendment by the Due Process clause “as the vehicle which the strictures Eighth triggered”). of the Amendment are discretion, guided abstract, Schemes considered in the submit, escape mandatory arbitrary the and I extremes. how- ever, that these extremes are avoided at a cost of doctrinal embodying tension that has rendered unworkable the schemes Ultimately, guiding them.4 such schemes are ineffectual sentencing precisely unique severity discretion the of because contrary the to be inflicted so escalates the burdens of uniformity and individualization as to render them extraordi- difficult, narily impossible, progeny if not of to reconcile. failure, futility. Gregg reflects this current if not ultimate This argues experience strongly precedent that the federal not be guidance used for and that look to our own constitutional we majority ignores resources. Because the the lessons of this experience precedent and insists that federal be used to define Constitution, searching analysis expose our own a more federal law is called for.
B.
addressed,
specific
Despite great diversity in the
issues it has
reasoning
which those issues have been ad-
with
dressed,
is unified
Gregg
the federal case law since
sentencing
generally
majority, noting
on the
4The
the reliance
policy
"guided
rejects
that "doctrinal
tension”
se
discretion,”
the notion
per
concept
depriving
what it believes to be
"is a basis for
to ordain
society
ability
sanction for murder.” Ante at 190. So do I.
appropriate
attempt
Supreme
manage
contrary impera-
Court to
individualization,
check,
uniformity
tives of
in other
words,
tendency
sentencing
arbitrary
of individualized
to be
preventing
sentencing
while
becoming
uniform
from
Procruste-
generally Special
an.
Project, supra,
See
15 Rutgers
L.J.
(describing developments
law).
281-303
case
In Lockett v.
Ohio,
(1978),
U.S.
98 S.Ct.
dence overrides Alabama, Beck v. state’s rules 447 U.S. 625, 100
353 sentencing uniformity exaltation of individualized over This Oklahoma, 104, Eddings v. 455 continued U.S. 102S.Ct. (1982), in which the “|j]ust Court held that as the L.Ed.2d preclude the may not statute sentencer from consider State factor, mitigating may neither ing any sentencer refuse consider, law, any mitigating relevant evi as a matter of 113-14, at at 10-11 dence.” Id. at S.Ct. L.Ed.2d supplied). (emphasis emphasis sentencing
The
on individualized
has not
Court’s
mitigating
limited to the context of
factors.
Enmund
been
782, 102
(1982),
Florida, 458
S.Ct.
L.Ed.
888.
factors,
mitigating
with
aggra-
As
the Court’s treatment of
vating
emphasized
has
factors
individualized treatment of cases
application
itself,
over uniform
of
In Gregg
laws.
the Court
rejected
challenges
facial
of Georgia’s statutory
several
aggravating
argued
provi-
factors. Petitioner
that statutory
specifying
aggravating
sions
such factors as the “vileness”
murder,
“depravity”
or
of
petitioner’s
the
the
“substantial
history
convictions,”
of
“great
serious assaultive criminal
or the
risk
death
person”
to more than one
by
petitioner
created
capital punishment
were either “so broad
imposed
could be
in any murder
or “vague
case”
susceptible
therefore
differing
widely
interpretation,
creating
thus
a substantial risk
inflicted____”
arbitrarily
that the death
will be
Id. at
201-02,
at
That the
Court was
420, 100
Godfrey Georgia,
in
U.S.
became evident
factor
(1980),
1759,
the Court reversed
where
64 L.Ed.2d
S.Ct.
the
the trial court instructed
imposed after
death sentence
Adverting to the
language.
merely reading the “vileness”
vile,
wantonly
horrible
language—“outrageously or
statutory
nothing in these
“There is
stated:
inhuman”—the Court
alone,
restraint
words,
implies any inherent
standing
few
the death sentence.”
capricious infliction of
arbitrary and
on the
1764,
The Court
428,
at 406.
at
64 L.Ed.2d
Id. at
S.Ct.
factor
short, however,
invalidating
aggravating
stopped
Georgia Court’s
uniformity, relying on the
interest of
in the
(see
detailed discussion
in other cases
narrowing construction
394-398).
developments,
at
Justice Marshall
these
infra
result,
reliance on
challenged the Court’s
in
but
concurred
construction, arguing
to narrow the
Georgia Supreme Court
limit
effort to
has made no substantial
“Georgia court
that the
factor,
instead defined
but has
scope
“vileness”]
[the
fit
every murder can within
practically
broadly
so
provision
at
64 L.Ed.2d
at
reach.” Id. at
its
Dix,
of the
“Appellate Review
J., concurring), citing
(Marshall,
(1979).8
Death,”
110-123
68 Geo.L.J.
Impose
to
Decision
channeling discretion
re-emphasize
Godfrey
If
did
fact
re-
1983 decisions
sentencing, three
interest of consistent
part,
Georgia
but
Court’s
"bad faith” on the
failure was due not to
8This
"deeper problem”:
eliminat-
"The task of
identified as a
what Justice Marshall
proving
punishment
be one
ing
the infliction of
arbitrariness
perform.”
at
446 U.S.
justice system
is unable
...
which our criminal
forebodings
as to
in McGautha
L.Ed.2d at 413. All
100 S.Ct.
persons
objective way
who should
“selecting
those
impossibility
in some
realized;
view,
had,
been
Marshall’s
in Justice
condemned to die"
factor was
of the “vileness”
Georgia
to narrow its construction
Court’s failure
impossibility.
symptom of that
but a
*189
goal,
treated from that
they
to the extent that
did not abandon
entirely.
it
In
Stephens,
Zant v.
462 U.S.
103 S.Ct.
(1983),
Thus, death jurisprudence brought was full-circle. again The Court uniformity sacrificed the might gained be by requiring guided that discretion throughout sentencing in determination”; the interest of “an individualized the discretion was, it sentencing stage moreover, allowed at the like the Furman, discretion unguided. condemned The latent insta- system bility of a requiring sentencing individualized deci- tendency arbitrary, unguided discretion—had toward sions—its patent.9 become was, holding anything, expanded if in Barclay Zant
Florida,
939, 103
(1983),
For the recognition first there was a of some spill-over exaggeration effect attributable to the of “individual sentencing, ized” an intimation that the Court’s elevation of sentencing “individualized” determinations over uniform sen tencing eroding was heightened determinations standard of retrospect review cases. In surprising, this is not amount of discretion increases, afforded the sentencer *191 degree the scrutiny of to subject which that discretion is decreases, necessarily only if decision-making pro because the opaque. cess becomes degree Once discretion is in some unfet tered, question longer the is no impose whether the decision to unprincipled arbitrary but, death is or plurality phrased as the it, whether unprincipled arbitrary it “so as to somehow violate the United 947, States Constitution.” Id. at 103 Ct.S. at 3423, 77 at L.Ed.2d 1142. requirement
The erosion of the
consistency
in Zant and
Ramos,
in
Barclay continued
v.
463 U.S.
California
992,
3446,
1171,
103 S.Ct.
L.Ed.2d
the
upheld
where
Court
a
death
sentence
the deliberation of which the jury was in-
possibilities
structed
consider the
the
defendant’s sen-
tence,
death,
if
than
might
less
be commuted or that
the
might
parole.
argument
defendant
be
on
released
To the
death-penalty
such an instruction introduces into
deliberations
individualization
wholly unrelated to
an element of arbitrariness
character or the circum-
irrelevant
to a defendant’s
because
Zant:
crime,
relying on
responded,
the Court
stances of the
jury
legislatively
finds that
the defendant falls within the
defined
Once
eligible
jury
category of
for the death
...
is then free to
persons
of factors
whether death is the
consider
to determine
myriad
appropriate
jury’s
between
In this
choice
and death must
sense,
punishment.
life
jury
ignore
individualized.
“But the Constitution does not
other
require
selecting
...
factors in the
...
those defendants who will
possible
process
be sentenced to death.”
at
With Gregg Furman was sub sentencing” identified alized advanced, eroding polar only by substantially stantially but Indeed, “individu consistency. very notion of imperative of original Gregg-Woodson cases sentencing, in the alized” which circumstances of the individu to the character and had referred Zant, Barclay, and Ramos defendant, was transmuted al afforded the individual sen amount of discretion refer to the Barclay, tencer; thus, following Zant Court, the Ramos aggravating one circum once the has found found that factors____ stance, myriad it free to consider “then is sense, must be individualized.” Cali this jury’s choice ... Ramos, 1008, 103 supra, 463 U.S. S.Ct. at at v. fornia supra, Stephens, U.S. at Zant at citing L.Ed.2d justification 251. The 77 L.Ed.2d at can never have individual defendant this—presumably that the *192 sentencer, at the sentencing the unless truly “individualized” equally justifica a stage, unguided discretion—is has selection Furman, and unguided condemned discretion tion for 360 collapse
signals any individuality balance between uniformity.10
Aside from the aggravating factors that were to limit the
grounds
sentence,
for imposing
guide discretion,
and thus to
principal guarantor
the other
of uniformity
by
identified
in Gregg
requirement
Court
was the
general
of a state review
ly,
indeed,
and proportionality
specifically;
review
both Zant
and Barclay
requirement
relied on the
of proportionality review
uniformity
Florida,
ensure
in Georgia and
respectively, in
light
unguided
discretion
stage
at the “selection”
sentencing approved by the
Stephens, supra,
Court. Zant v.
875,
2741,
462
248;
at
103
U.S.
at
77
at
S.Ct.
L.Ed.2d
Barclay
3426-27,
953-54, 103
at
77
Florida,
at
S.Ct.
supra, 463 U.S.
v.
Florida, supra,
at
(quoting
v.
428 U.S.
2d at 1146
L.Ed.
Proffitt
920-22).
248-51,
2964-66,
Pulley
at
49 L.Ed.2d
at
S. Ct.
Harris,
37,
871,
465 U.S.
at
(1984),
S.Ct.
The
in
Court’s decisions
insu
significant degree
review,
late a
appellate
of discretion from
in Pulley
require
and its
compare
decision
not to
state
to
courts
each death
sentence
other homicide cases to ensure uniform
ity,
significant
light
approval
are
in
all the more
of its
of
Estelle,
appellate
procedures
foreshortened
Barefoot
U.S.
(1983).
In Barefoot,
S.Ct
77 L.Ed.2d
despite
Court sustained a death sentence
fact that
psychiatrists
penalty phase
two
who were called at
testify
“continuing
a
the defendant would constitute
society
threat” to
had
examined
The
never
the defendant.
lost, however,
petitioner’s challenge
merits of
were
Barefoot
argument
procedures
in the
of
propriety
expedited
over the
rejecting
and standard
review used
the Fifth
of
Circuit
challenge.11
plurality acknowledged
“it is not
argument—that
psychiatrists’ testimony
11Because the defendant’s
use of the
rejected by
was
been
the state court and a
unconstitutional—had
heard
probable
ap
federal district court—which had nonetheless certified
cause to
imminent,
peal—and
an
been set and
the Fifth
because
execution date had
was
argu
Appeals gave
day’s
Circuit
than a
for oral
Court of
little more
notice
ments,
briefs;
argument
judges
wholly
was
and heard
without
one of the
day
argument,
days
and four
unfamiliar with the record in the case. One
after
exеcution,
16-page opinion
Appeals
before
of
a
the scheduled
the Court
issued
execution,
ground
denying
request
stay
petitioner’s
that he
for a
on the
merits____"
prospect
463 U.S. at
could not
on the
show “some
success
however,
failed,
court
affirm the
procedural
where
particularly
By
suggesting
might
be
special summary procedures
adopted solely
capital
majority
cases,
turns this established
on its head.
[Id.
approach
913-14,
(Marshall,
(citations
dissenting)
at 2761-62,
Barefoot insulating which followed Zant much sentencer’s appellate discretion from review. These cases were followed year require comparative within propor- decision not tionality Pulley together, review in v. Harris. Taken the cases signal the “willingness significant degree Court’s to tolerate a sentencing procedures,” incoherence in and thus its imperatives abandonment of the in Gregg. identified “The Term,” Supreme (1984). Court—1982 97 Harv.L.Rev. 118-27 is, words, There in other a causal connection between the approving unguided stage decisions sentencing discretion at the appellate and the truncating decisions To review. the extent unguided, that discretion is more likely arbitrary, it is to be pass hence less likely appellate muster under an review designed—because capital punishment is different kind from punishment—to all other forms uniformity. ensure To allow extra-statutory deliberations, sentencing Supreme as the Court done, arbitrary sentencing, has is to sanction and to make *195 anything perfunctory appellate sentencing impos- but review of therefore, way, only expand scope sible. The to of allow- maintaining capital punish- able discretion while a functional system procedure ment is to circumscribe substance 127; appellate Special Project, “Capital review. See id. at Abandoning Punishment in 1984: Pursuit Fairness 1129, (1984). Consistency,” 1214-16 69 Cornell L.Rev. then, through Pulley, cases from Zant to have Barefoot
in
if
vanquished
requirement
fact
not in doctrine
of consist-
ency
Gregg,
that lies at the core of
and thus mark
Furman
departure
a
those
that
principle underlying
from
cases
require heightened procedural scrutiny
death sentences
because
in
any
punishment.
death is
kind
other form of
different
from
In
This retreat unifies the cases decided since Barefoot.
687,
2052,
668,
Washington,
Strickland v.
466 U.S.
674,
(1984),
held that
L.Ed.2d
Court
“[f]or
purposes
describing
capital
duties
Florida’s
counsel’s
...
sentencing
distinguished from
proceeding need not be
an ordi-
nary trial.” Justice
grounds
Marshall dissented on the
that the
Court
acknowledged
has
that
repeatedly
the Constitution
stricter adherence
requires
safeguards
cases____
to
in a
procedural
case than in
capital
other
view,
my
a
on death
person
row, whose counsel’s
fell below
performance
constitutionally
should
levels,
not be
to
acceptable
demonstrate a
compelled
‘reasonable proba
given
that he would have
bility’
been
a life sentence if his
had been
lawyer
(Marshall,
...
at
competent
[Id.
716-17,
J.,
702-06,
id. at
2072-74,
See
L.Ed.2d 123
(holding
resentencing
hearing
by
case is not barred
Jeopardy
appeals
Double
when
court
rejects sole aggravating
sentencer;
factor
found
failure of
sentencer to
alleged
find other
aggravating factors is not an
“acquittal” of these
Jeopardy
factors for Double
purposes); id.
-,
(Marshall, J.,
S.Ct. at
365
689,
(1986)
106
88
(holding
finding
S.Ct
L.Ed.2d 704
that the
required
intent murder
under
does not
to be
Enmund
have
by
fact-finder,
made
the trial
but
by
can be made
federal
appellate
reviewing
court after
trial
appellate proceeding);
at-,
705,
(Blackmun, J.,
id.
106
at
727
S.Ct.
88 L.Ed.2d at
(“The
dissenting)
Court’s conclusion that we should allow the
capital punishment
to adopt
State
that depend
schemes
on
factfinding
appellate
by
‘it is
apparent
because
no means
that
factfinding
appellate
will always
inadequate’
be
...
on its
turns
heightened
reliability
required
head
concern with
...”
in
punishment cases);
Alabama,
Heath v.
474 U.S.
(1985) (holding
106 S.Ct.
No Court’s abandonment heightened procedural safeguards concern for in capital cases — U.S.-, can found than Darden Wainwright, (1986). Darden, L.Ed.2d the trial court closing argument a prosecutor allowed in which the referred to implied defendant as “an animal” and death sentence only against would be the assurance a future act. similar standards, Applying Supreme conventional Court held that this allowance Justice was harmless error. What Blackmun in easily response dissent wrote could have been written as any post-Barefoot the above-cited cases: Although guarantees the Constitution a criminal defendant “a fair trial only not a ... has decade one” this Court stressed [and] perfect repeatedly Gregg degree Eighth heightened since ... Amendment requires where a case State seeks take the defendant’s life. reliability any Today’s willing a court to tolerate but a however, reveals not only imperfection opinion, of fairness should level so low it make conscientious reliability prosecutors (Blackmun, cringe. S.Ct. at at 162 [Id. J., L.Ed.2d -, (footnote omitted) (citations dissenting) omitted).] *197 heightening procedural Far from integrity required because punishment, the nature of the the Supreme Court in recent has, anything, if to lower begun appellate cases standards to punishment possible. make
The cases from Zant thus set the trend in federal
Barefoot
penalty jurisprudence
death
day:
that continues to this
“De-
spite
confusing plethora
of concurrences and dissents in the
death
may
cases ...
setting
Court
indeed be
away
course:
from such
Reidinger,
cases.” Paul
“A Court
Journal,
Divided,”
ABA
1, 1987,
46,
January
Signifi-
50.
cantly, the
system
breakdown of the
occurred
Zant-Barefoot
just
system
as the
beginning
yield
was
roughly
“results”:
ninety percent of the
post-Furman
executions since the first
execution in 1977 have occurred since
Barefoot,
the decisions in
Barclay, and Ramos.
Note,
supra,
See
95 Yale L.J. at 352.13
13Indeed,
important
Supreme
as
as the
Court's substantive case law since
1983 has been the rancor on the Court evident in its denials of certiorari or of
stays
Hutchins,
377,
752,
of executions. See Woodard v.
464 U.S.
104 S.Ct.
(1984),
Supreme Court—possessing
L.Ed.2d 541
in which five members of the
neither the final
draft of
lower court’s decision nor the defendant’s defense
stay,
only
attorney general’s
page
but
the state
three-and-a-half
handwrit
stay
p.m. expiration
ten motion to vacate—vacated
in order to beat the 6:00
per
the death warrant.
Justices White and Stevens described the Court’s
stay
"opaque";
curiam vacation of the
Justice Brennan described as “inde
383,
755,
judgment."
fensible” the Court’s “rush to
The fundamental
death-penalty
incoherence of federal
doc
has
Supreme
trine
never been more evident
than in
Court’s
*198
—
disposition
issue,
most recent
of the
Brown,
v.
California
U.S.-,
837,
(1987).
107
93
S.Ct.
L.Ed.2d 934
Four Justices
agreed that
prohibiting
California’s
jurors
instruction
from
being swayed by
sympathy”
“mere
was constitutional because
by limiting
jury’s
“the
consideration to matters
in
introduced
it,
Eighth
evidence before
it fosters the
Amendment’s ‘need for
reliability
sentencing
...’” in
and “ensures the availability of
review____”
meaningful appellate
at-,
840,
107
Id.
S.Ct. at
Justices, however, agreed
prior
in
opinion
Rehnquist’s
Barclay,
legitimacy
which
of
sentencers
to detach
emphasized
inability
(in
feelings
themselves from
unrelated
that case,
to the evidence
the sentencer’s
likening of the murder
to his
with Nazi concentration
personal experience
camps).
949-50,
3424-25,
U.S. at
C.
ongoing
odyssey
lessons
this
compel
federal
us to
search our own Constitution for
protections
must
applied
determining
validity
of our
murder-death
thorough,
laws. That search must be
and
conscientious
principled.
variety
We have in
emphasized
of contexts
those
germane
considerations that are
understanding
to an
of our
State
Williams,
(1983);
Constitution.
State
93 N.J.
57-59
Hunt, supra,
(Handler, J.,
State v.
The Constitution itself is first of reference. The basic within validity constitutional which the framework capital murder-death penalty statute must measured be is the rights set corollary protections of individual and guar- that are 1, 5, by paragraphs anteed 12 of I of and Article the New Jersey provides: Constitution. I Article All are nature free and and have certain natural persons independent, and rights, among enjoying defending unalienable which are those of and life and protecting acquiring, possessing, pursuing of and and of liberty, and property, Const, obtaining and I, art. safety happiness. [N.J. para. 1] of enjoyment right, No be shall denied the civil or person nor be any military against right,
discriminated in the civil exercise or nor any military be segregated religious militia or in the because of schools, public principles, origin. or race, color, national ancestry [Id., para. 5] Excessive bail shall not be excessive fines shall not required, imposed, cruel and unusual shall not be inflicted. punishment [Id., 12] para. language Both the provisions and structure these affirm that the the individual—including life of of life quality embod- liberty, safety, ied in security happiness—is accorded the highest greatest protection possible value under the State life, Constitution. Government cannot take or detract from the life, rights life, essence of supportive restrict the that are *201 arbitrary factors; based on and unreasoned actions or invidious even imposed, when must may sanctions be the State impose punishments any that are cruel and unusual. It follows logically provisions from these and their purport obvious when itself government life is stake must its most scrupulous any wrongful avoid harm. history
The Jersey’s experience of New application the of capital punishment the evolving an understanding reveals of meaning this of our history Constitution. This discloses con- tinuing changes perceptions scope in the depth the and principles prize constitutional individual life. The law has historically heightened evolved in the protections direction of individual, for reflecting, tacitly, perhaps for need government law and to minimize of injustice. the risk This evolving societal awareness of the existence and evil of arbi- part paralleled trariness has in knowledge increases in our generations, social and individual behavior. Over the our understanding injustice of social and individual has become greater insights more acute. With into existence and reality injustice, protections of such to eliminate undue risks of heightened. history capital arbitrariness have also been This punishment in dramatically our State most illustrated decreasing capital use of the murder sanction. change greater protections from lesser to is evidenced significant
several Perhaps changes areas. the most have been penalty itself. Between law death apparently mandatory degree was all first murders. De pleaded guilty guilt subject degree fendants who were to a if hearing degree. to determine one of murder was first 1709-1877, Crimes, 68, p. Significant See Revision 239. N.J. § ly, the death statute enforced between 1906 trials; very allowed face capital few murderers to the statute narrowly murderers, itself defined a class of see N.J. Genz, pointed 2A:113-2. As S.A. out in State v. 57 N.J.L. however, (Sup.Ct.1895), time, from abhorred the earliest courts admission, entering judgment death on defendant’s *202 generally prisoners advised to guilty plea plead retract the to the prove, indictment to force the State to jury’s the satisfaction, charged. all elements of the crime at Id. 462-63. Prompted Davis, by Hallinger 314, 105, v. 146 U.S. 36 S. Ct. (1892), in L.Ed. which a death sentence guilty based on a plea upheld, Legislature practice. was the ended the See Gazette, 14, 1893, Daily 5, Trenton State Feb. at cited in State Forcella, 263, (1968). Legislature N.J. The amended the statute in by abolishing plea guilty, of thus eliminating ready gallows,” “a and facile road State v. Genz, supra, 57 at authorizing plea N.J.L. of non plea accepted, vult. If the non vult was the court was re quired to sentence the defendant to the same term imprison imposed upon ment as a conviction of in murder the second degree. Forcella, supra, See at N.J. 277. The Forcella plea Court noted that the non vult was intended to benefit by permitting murder defendants the court to bar the death penalty where the facts so warranted. Legislature again in 1916 protections against added
imposition
punishment. L.
c. 270. That amend
penalty
ment modified the
for
degree
first
murder to “death
unless the
rendering
at the time of
the verdict shall
imprisonment
recommend
at hard labor for life.” L.
c.
170, p. 576. Another amendment
increased the authorized
maximum
plea
sentence on a
imprisonment.
non vult
to life
L.
1917, c. 238. While this amendment increased the maximum
term,
purpose again
improve
its
position
was to
of homicide
by encouraging
defendants
accept
pleas
courts to
non vult
years
circumstances which a maximum term of
did not seem
enough
penalty
Forcella,
but the death
was too much. See
supra,
Finally,
15[A]fter 1916 life term
sentences were meted out for murder with much
prison
greater
than
But
death sentences would have been.
how much this
frequency
juries
right
is due
to the fact that
availed themselves of the
to recom
primarily
willing
mend
and not to the
more
fact that courts became
mercy,
accept
Penalty,
(1965),
pleas of non vult or nolo cannot be said. "Death 1,30-31 1907-1960," (1961).] Jersey, Rutgers Sentences in New 19 L.Rev. 374 respects system
In other legal moved to ameliorate the in capital punishment. arbitrariness the administration of procedural protections provided through the Greater were avail- ability appellate review. causes to be Constitution, Under all are heard capital appeals accompanying of execution and a writ of error with is Supreme Court, stay to issue New has moved from the Jersey automatically upon application____ contingent that cases is on the of the court
position appeal capital pleasure having contingent to hear such position authority appeals appeal defendant____ [Id. on the initiative of the only 35-36.] recognized judicial scrupulous It was review must be more Mount, cases than in others. State N.J. (1959). actually indicates,
The low number of criminals executed of, consequence strong procedural protections is a this State increasingly granted facing penalty. Through those the death that, period developed experience out that the State a shared prosecutors juries judges after exercised their discre tion, relatively persons few were sentenced die. It is fair to conclude, in retrospect, history experience that the of our with capital punishment history evolving is the of an moral sense only that the ultimate should be inflicted in the most safeguards. cases, egregious only rigorous procedural under the most Dulles, 86, 101, 590, 598, rop v. U.S. S. Ct. Cf. T (1958) (the phrase L.Ed.2d “cruel and unusual punishment” meaning evolving “must draw its from the stan decency progress maturing dards of that mark the of a socie ty”). *204 history only society places
Our thus not confirms that ex- life, traordinary value on but also teaches us socie- individual ty’s judgment moral the death should not be so, unless, words, applied right unless it in other to do procedural protections have maximized so substantive been possibility that the risk of reduced and the arbitrariness is injustice the ultimate is eliminated. import language and structure and of the constitutional capital punishment must history experience of our with
appreciated Jersey’s the broader context of strong New interpreting applying tradition of its state Constitution to heightened protections individual, again afford for the reflect- ing profound our commitment to the worth the individual. willingly
We have in
resorted
State Constitution
cases
to our
as an
important
rights.
recognize
source of individual
We have not hesitated to
independent
rights
and vindicate individual
under
the State Constitution where our own
legal
strong
traditions,
constitutional
state
policy
history,
public
special
Williams, supra,
(1983)
v.
N.J. at 52
[State
concerns
warrant
such action.
(citations omitted).]
See,
95;
Novembrino,
e.g.,
supra,
State v.
105 N.J.
State v.
Gilmore,
508;
Hunt, supra,
supra, 103 N.J.
State v.
91 N.J.
338;
287;
Right
Byrne, supra,
91 N.J.
Choose
State v.
Alston,
211;
Schmid,
supra,
supra, 84
88 N.J.
State v.
N.J.
Johnson,
535;
(1975); Burlington Cty.
ance Of have, expansive an A.1935). particular, (E. endorsed & We Constitution, I, noting reading of 1 of our paragraph Article provision, Rights, State Bill of which includes that “[t]he present expressing ‘the ideals of has been described as ... constitution day way in a ever before in American broader than ” (citation Choose, at 303 history.’ supra, 91 N.J. Right al omitted).
Our decisions demonstrate that the State Constitution inde- pendently provides important guarantees of civil liberties in New Jersey. recognized As by Justice Pollock in Right Choose, N.J. this Court obligated “remain[s] ... to evaluate light [all statutes] Constitution of New Jersey.” We carry out this task without granting any pre- sumption that Supreme Court’s interpretation of the federal Constitution will determine the extent of state constitutional *205 Hunt,
rights.
supra,
(Pashman, J.,
See
A consistent theme of our cases in the criminal law context
unwillingness
has been this Court’s
Supreme
to follow the
its
rights
Court where
retrenchment of fundamental
tolerates a
significantly higher degree
arbitrary
state action than would
protections
Thus,
our
rights.
own
these
in State v. Novem-
brino,
Stein,
supra, 105
writing
N.J.
Justice
for the
Court, understood that our State Constitution
recog-
does not
good-faith exception
rule,
nize the
exclusionary
because
exception represents
Supreme
Court retrenchment
fully protect
failed to
underlying
right
individual
to be free
from unreasonable searches. The
opinion
Court
an
written
Garibaldi,
Guarino,
(1986),
Justice
Matter
This Court has necessity expanded seen the protection when individual liberties are most vulnerable. We Pollock, supra, Rutgers
16See L.Rev. at 722: century, significant In the first half of this the most historic fact about Jersey adoption New constitutional law was the aof modernized constitu- During century, significant tion in 1947. balance of this the most fact may separate be the extent to which courts look to state constitutions as endure, rights. declarations of fundamental If those are declarations principled theory justifying courts must base their decisions on a recourse to the constitutions. *206 provide have not to protection hesitated such Supreme when the Court, abandoning protections, such opted has to a take less protective route. of
Protection individuals involved in a criminal trial has also by recognition enhanced our the principle been of of fundamen- fairness, tal Jersey a doctrine under New law that serves to protect generally against govern- citizens unjust arbitrary action, specifically against governmental mental proce- operate dures that tend arbitrarily. to The doctrine of funda- serves, context, mental depending fairness aug- on the as an existing protections mentation of constitutional or an inde- pendent protection against source of state action. As we explained Abbati, (1985): v. State 418 N.J. integral right Fundamental fairness can be viewed as an to due part right It also be a
process—
considered
may
penumbral
reasonably extrapo-
guarantees____
Regardless
lated from other
constitutional
of its
specific
rights
source,
fundamental
fairness
is a settled
of the accused.
repository
(citations omitted).]
at 429-30
[Id.
State,
In this
implicated
stages
fundamental fairness is
at all
justice.
Kunz,
administration
In
State
Considerations
fundamental
particularly
fairness are
heightened
potential
where the
harm to the individual from
arbitrary
greatest.
state
Thus,
action is
Tropea,
State v.
(1978),
N.J. 309
we held that a defendant could not be retried on
charge
for which the
convicted,
defendant had been
where the
conviction had been
reversed
the Appellate Division. We
retrial,
disallowed a
because
compulsion aside,
“constitutional
it
plain
to us that considerations of fundamental fairness mili-
against any
tate
retrial
this case.”
(1983),
Gaffey,
State v.
N.J.
we said:
*207
fitting
In
circumstances,
whose indictment has been
[an incompetent
dismissed
prejudice]
without
would doubtless, as a matter of elemental
fairness and due
against
from
to renew the
process,
protected
any attempt
prosecution
him,
notwithstanding
prejudice.
an earlier dismissal of
the indictment without
relating
[Constitutional
considerations
to
trial, due
speedy
and funda-
process
mental
fairness will serve, when
to bar such
appropriate,
future prosecutions
those
though
recovered from
[of
mental
recently
even
illness],
time-barred.
at 388,
[Id.
389.]
Fundamental fairness thus enhances or extends the scope of
other
protections.
constitutional
In
Gregory,
State v.
66 N.J.
(1975),
510
concept
we referred to the
of fundamental fairness in
requiring compulsory joinder of known offenses based on the
arising
same conduct or
from the
episode.
same criminal
We
recognized
protection
that this
beyond
went
protec
the level of
required by
tion
guarantee
constitutional
against double
jeopardy.
protection, instead,
was intended “to satisfy the
considerations of fairness and
expectations.”
reasonable
Id. at
521;
Calvacca,
434,
see also State v.
199 N.J.Super.
(App.
440
Div.1985)(custodial
“infringement
sentence was
of defendant’s
right to fundamental
sentencing,
fairness in
a doctrine related to
but somewhat broader in
application
its
than the constitutional
safeguard against
jeopardy”);
double
v. Godfrey,
State
139
N.J.Super.
denied,
(App.Div.),
138
(1976)
cert.
379
“the motion
dismiss
granted
should have been
whether it
grounds
be on
jeopardy
of double
fairness”).
fundamental
imperative
govern-
Fundamental fairness constitutes an
ment minimize
dealing
arbitrariness in its
with
citi-
individual
imperative
zens. The
expressed
can be
well
substantive as
procedural
Talbot,
as
(1976),
laws.
v.
State
methods the State must measure employed by up commonly accepted government standards of conduct to which [Id. must adhere. decency 168.] explained This universally recognized Court has how “[i]t that, aspect an duty the courts’ to ensure fundamental fairness, they government will arbitrary root out action.” Leonardos, (1977); State v. 73 N.J. 377 n. 7 accord State (1981). heart, 86 Dalglish, injunction At this N.J. its recognizes equation an avoid arbitrariness between individu rights government al Eldridge, action. Mathews v. 319, 335, 893, 903, (1976);
U.S. L.Ed.2d Polk, (1982). process, As Matter N.J. with due important the greater two must balance: and more *208 interest, greater individual the and more sedulous must be the vigilance arbitrary the that preventing the law in invasion of life, right right interest. Where the individual at stake is the therefore, maximal, safeguards right the for that must be sen penalty qualitatively of death is different from a “[t]he imprisonment, long.” tence of however Woodson v. North Carolina, supra, 428 at 49 L.Ed.2d U.S. principle at 961. This continued reaffirmation of the Court’s context, ordinary fundamental in the more fairness criminal over, sharp the Supreme stands contrast to Court’s retreat proposition requires heightened from the death procedural safeguards. sum, independent an separate and analysis of our State
Constitution demonstrates that individual life is accorded the greatest importance highest and vested with the value. This is fairly discerned grand sweeping from the and provisions of I, 1, 5, paragraphs Article and 12. A full examination of the Constitution also governmental reveals that correlative duties expressly interposed life, are protect individual such as the prohibition against cruel and punishment unusual and invidious discrimination. The exaltation under the State Constitution of life, individual liberty, safety, well as security happiness, accounts in development considerable measure for the of both independent State interpretation constitutional ancillary and the doctrine of fundamental fairness. This has come to mean that government protections must accord those necessary are and effective to vindicate and assure the individual interest at means, stake. It in the context capital of a murder-death penalty statute—given unique importance of individual life finality of death—that the maximum proce- substantive and protections possible used, dural must protections that can realistically minimize the risk of arbitrary enforcement.
In assessing constitutionality Jersey’s of New capital punishment statute, we “can hardly ignore the ebb and flow” of Novembrino, federal case law. State v. supra, 105 atN.J. Further, though 857. mindful popular sup- undeniable port for capital punishment, forum, at least in some as reflected in opinion polls passage statute, of this we cannot be swayed by it. As Justice Novembrino, Stein states in “[o]ur concern ... is with the Constitution and with the basic and guarantees fundamental that that document was intended to citizens, afford to all particularly our public in times of fer- tripartite system ment---- In our separate governmental powers, primary responsibility preservation [their] that of judiciary.” Id. at 857. believe, Jersey,
New
I
can benefit from the hard lessons of
experiment
guided
federal
with
discretion in
cases.
experiment
record of that
quite possible
makes “it
that the
*209
damage to the
guarantee
case,
constitutional
this
of due
[in
process
against
cruel and
punishment] may
unusual
reach
such a level as to cause the
experiment”
Court to reconsider its
guided
with
discretion. Id. at 857. We need not abide such a
result, for our state
jurisprudence
constitutional
per-
furnishes
suasive reasons not to follow
precedent
federal
in this State.
This
particularly
is
so when “recent decisions of
Supreme
provide persons
inadequate
...,”
Court
with
protection
State v.
Alston, supra,
224-26;
Novembrino,
88 N.J. at
State v.
supra,
95;
Guarino,
supra,
N.J. Matter
104 N.J.
and when
federal
perceived
decisional law is
unclear,
to be unsettled or
Gilmore,
508;
supra,
State v.
Williams,
N.J.
State v.
39;
supra,
Schmid,
93 N.J.
supra,
Here,
State
We by more than following federal death-penalty precedent. To the extent majority’s today decision is inconsistent approach with the prior of our cases, state jeopardize constitutional we our develop efforts to a principled recourse to the State Constitution. To the extent progeny that the of Gregg contrary is spirit to the of fundamen- tal fairness underlying Constitution, our State we risk the integrity of our protections. constitutional
II. There point should be consensus on Supreme that the willing Court is tolerate federal death-penalty jurispru- unacceptable dence an level of arbitrariness. question The becomes whether death sentences issued Jersey under the New statute, 2C:ll-3, are likely any N.J.S.A. arbitrary. less question This fairly by is raised challenge defendant’s to the major aspects of the statute. He contends that the entire statutory provide scheme meaningful fails to and effective distinguishing basis for those cases in penalty which the death appropriate penalty is an not, from those in which it is that it creates an intolerable risk that death will be inflicted in an arbitrary capricious and major manner. Three reasons are advanced to show satisfy that the statute fails to these constitu- penalty invalid; tional standards: the death per is se inclusive; penalty overly statute is murder-death broad vague imprecise. rejects the statute is too The Court these contentions. made, majority 190) contends that I have {ante
effect, per argument against penalty all death statutes se acknowledging validity principles underlying death penalty jurisprudence documenting inability while of courts per to honor them. A se invalidation of the death not, however, logical consequence argu- an ineluctable of this *211 ment; necessity protections all that follows of is that by penalty jurisprudence afforded federal death in the name of minimal, principles Jersey these have and that a been New penalty provide, independent death statute matter must as a of law, significantly greater protection state constitutional than note, precedent. the minimum I countenanced under federal do however, my apprehension question. that time will settle the will, certain, frustrating All us I of am endure the and frenetic attempts capital punishment in to enforce a fair and sensible will, way plague experience that now our sister states. That I fear, yield grim capital punish- confirmation of the fact that society virtually impossible ment in a is civilized constitutional principled per invalidity to administer in a manner. The of se words, capital punishment, may official well self-re- other be vealing. I choose on the statute it- therefore to concentrate self.17 assessing constitutionality of our murder-death relating un-
penalty statute under the standards to cruel and law, punishment process major questions usual and due vague- and concern whether the law suffers from overbreadth arguments on federal 17 Ichoose not to address defendant’s related based excessive; grounds—that penalty that a less severe constitutional the death penalty punishment process; that it serves no will serve the same deterrent and legitimate purpose. legislative purpose; state valid and that retribution is not persuaded arguments under the State While I am not that these lack merit Constitution, inconclusive, disputation prove proble on these issues will at best matic, divisive, settling nothing. persuading few and bring (1) These ness. concerns us to examine whether law upon proceeds definition murder that itself is too broad and inclusive; (2) aggravating whether the factors enumerated in the statute this narrow broad definition are themselves so as to vague meaningless all-inclusive; (3) be either whether asserted deficiencies in terms overbreadth and vagueness (a) by are exacerbated the fact that the determi- of death-eligibility nations and death-selection are simul- made taneously, (b) provide adequate the failure in the statute to may standards terms of who exposed initially capital- to a i.e., prosecution, prosecutorial discretion, murder may and who ultimately unjustly have subjected penalty, been to the death i.e., proportionality review.
A. primary argument advanced defendant is that our death statute is violative of cruel and unusual punishment prohibition, process standards, as well as due be- cause the sufficiently statute has failed both to narrow the scope clearly statute and to define the crimes for which punishment. death can be a
There are aspects any death-penalty two fundamental *212 proceeding: a eligibility, determination of death in which the death-eligible narrowed; first class is defined and then selection, death in death-eligible which those in the class whose crimes warrant the infliction of society’s harshest sanction are confusion, however, for selected death. There is as to where begins Thus, one rejects and the other ends. the majority position aggravating defendant’s that the factors “fail to define death,” persons eligible concluding narrow class of in- “aggravating only stead that factors after ... are considered made.” Ante at eligibility death been determination has 188 n. 20.
Much, all, if not of the confusion traceable to United Supreme sentencing procedures States in Court’s discussion of 153, 2909, Gregg Georgia, supra, v. 428 U.S. 96 S. 49 L.Ed. Ct. Stephens, supra, 2d and Zant v. U.S. noted, 77 L.Ed. 2d 235.18 The Gregg, Court in that “[i]n Furman, Georgia statute,
the wake of
amended its ...
but
scope
chose not to narrow the
provisions____
of its murder
act, however,
Georgia did
to narrow the class of murders
subject
capital punishment by
specifying
aggravating
...
circumstances____”
197-98,
Id. at
those which fall into the of murder. This is established legislature defining manslaughter]____ in statutes terms such as murder [and plane separates The second from all murder cases those in which the possible punishment. plane by statutory of death is a This is established aggravating definitions of circumstances. [********] Jersey’s Georgia. 18Thestatute to which New is most often likened is that of Project, (“The Special supra, Rutgers similarity See L.J. at 274-76 of the New Jersey Georgia approved Gregg Georgia statute to the version ... is not accidental”); Capital Hearings Punishment Act: on S.112 Before the N.J. Senate Comm.,
Judiciary (1982) (Statement Leg., 200th 2nd Sess. 1 of Senator Russo: “Basically, Supreme the bill is drafted the United States in accordance with guidelines Supreme punishment Court that render constitutional in the declared"). therefore, appropriate, Court case that so It is to refer to the Supreme analysis Georgia Court’s of the structure of the statute as a frame *213 discussing work for our own. The third from all cases in which a of be separates, death plane penalty may those cases in which it imposed, shall be There is an absolute imposed. given discretion in the factfinder case below the and not place any plane death____ [Zant, supra, U.S. S.Ct. L.Ed. at at 2d impose 2739, at 246.] Thus, analysis “death-eligibility” under the Court’s is an equivo term; statutory cal all “death-eligible,” while murders are in exposes the sense of that conviction murder the defendant to penalty proceeding, equally arguable the it is defendant truly “death-eligible” is not until aggra the has found one factor, vating for only jury separated then has the all “from murder cases those in possible which of death is a noted, punishment.” “statutory Id. aggravating As the Court play constitutionally necessary circumstances function at the stage legislative definition; they circumscribe the class persons eligible for penalty.” the death Id. at 103 S.Ct. reasonable, 2d equally 77 L.Ed. at 250-51. It is in other words, argue based death-eligibility on Zant that is defined factors, by aggravating insist, does, as to majority death-eligibility aggravating is defined before the factors are considered. Jersey’s Georgia
New statute differs from scheme de Zant, however, scribed in respect. a decisive Unlike Geor gia, statutory where aggravating circumstances serve the sole narrowing persons eligible” function of “the class of penalty, play part guiding and thus jury’s no death-selec discretion, in Jersey aggravating tion guide New circumstances jury’s death-selection discretion. That this distinction itself, makes a difference can seen in Zant where the Court distinguished noted and improp cases which consideration of aggravating required sentence; er factors vacation of the dispositive difference, noted, the Court was that those cases statutory process involved a weighing corrupted that would be aggravating consideration an factor. Id. at n. invalid at 2741 2d n. 77 L.Ed. at 247 n. 12. therefore, consider, appropriate, It is independently Zant, Jersey’s aggravating whether under New statute the *214 play properly defining a role in death-eligi- factors the class of possibilities: (1) not, murderers. There are they ble two do case the class of death-eligible by which murderers is defined 2C:ll-3(a)(l) (2), N.J.S.A. statutory mur- definition of (2) der; aggravating death-eligibili- or factors do define ty, they in which case serve both to narrow the of class death-eligible guide murderers and jury’s discretion in weighing process. my opinion, interpretation In either defective, constitutionally the first because of the overbreadth statutory murder, definition of the second because of the prejudice, point view, inherent from the defendant’s defining the offense imposed, as the sentence is and because of vagueness the inherent overbreadth and aggravating factors, c(4)(c). notably most
1. provisions We turn first then to the definitional of the State statute, capital penalty 2C:ll-3(c). murder-death NJ.S.A. This permits penalty anyone the infliction of the death on who by a purposely knowingly causing commits homicide or death or bodily injury statutory aggravating serious if one of the circum- outweigh any mitigating stances is found to exist and to effect, murders, encompasses factors. the statute all name- ly, purposeful killings, knowing killings, killings all all and all purposeful knowing that result from a or infliction of serious 2C:ll-3(a). bodily harm. N.J.S.A. extraordinary breadth of the current class of murders
initially eligible penalty by for can the death be illustrated comparison eligible historically to the class that was for punishment throughout century under our death this former prescribed statutes.19 The murder statute former 19 I no murder over Ante harbor for one definition of another. "preference” at 195. To the extent that the of murder created a class definition prior death-eligible large was murders so that the device of non vult arbitrary plea have been too class, to narrow even the definition may required prior penalty option degree death оnly first murder. This was defined to perpetrated include “Murder which is by means of poison, by wait, or lying any willful, or other kind of premeditated deliberate and killing, or which is committed in perpetrating attempting perpetrate certain felonies.” See 212, 1; 2:138-2; 238, 1, L. c. p. L. c. R.S. § § (1924 Supp. 52-107); (C.S. p. L. c. p. § § *215 1780, 107). degree This of first definition murder remained § substantially unchanged (there amendments) were minor after 1898. statute, exception
Under the former
with the
of murders
accomplished by poison
wait,
lying
during
murders
course of certain named
felonies
the murder
a law
officer,
enforcement
required
the State
prove
was
three
operations
mental
first-degree
before a
murder conviction could
premeditation, deliberation,
stand:
and willful execution of the
plan.
Anderson,
v.
(1961).
See State
35 N.J.
496-97
All
other murder
presumptively
degree
was
second
murder—a non-
capital offense—regardless of the circumstances of the murder.
The element of
was
deliberation
the crucial difference between
degree
first
(capital)
degree
(non-capital)
second
murder.
Deliberation,
homicide,
followed
is what was considered
outrageous
murder,
so
degree
justifying
about first
societal
punishment and
form
penalty.
retribution
of the death
The current
requirement
“purposely” committing
mens rea
murder,
2C:2-2(b)(l),
closely corresponds
N.J.S.A.
to the
requirement
i.e.,
former
premeditation,
intent to kill. The
statute, however,
new
requirement
contains no
of deliberation.
includes,
murder,
The current statute
as capital
also
death
solely
that results
from the intentional infliction of serious
bodily harm.
It was clear under the former law that the intent
only
do
bodily
serious
harm was insufficient for a first
broad;
nonetheless,
believe,
it was
I
more definite than
current definition.
drawing
making
I am
here, not
a recommendation.
comparison
Thomas,
See,
e.g., State v.
N.J.
degree murder conviction.
(1972);
Madden,
State v.
(1978);
The inclusion of degree murder—ex- the former second rough equivalent to death-eligible as may be of murderers who pands the class acknowledges majority compared to the former statute. irrelevant” be- this, comparison ... is insists that but “[t]he phase guilt at the requirement that the class cause there is no ultimately subject to the death the class smaller than “be at 187. The prior statute.” Ante penalty under a state’s “ ‘duty to authority” imposing a further finds “no majority eligible for the death individuals who are limit’ the number of however, of the class Presumably, the limitation penalty.” Id. majority does penalty, duty eligible for the death of those numbers, unless acknowledge, result in a reduction will here large. I that the class meaninglessly submit class itself is of the class of only meaningful definition so broad that the penalty phase. during the death-eligible murderers can occur *216 alone, subjects to a standing provision, This state’s homicide prior statute under the sentence defendants who possible death Indeed, under given a life sentence. even have been would not defendants degree murder even most prior our statute first sentence, exercise a but could subjected to a death not were excising the non vult between plea; given a choice non vult statute, more- invalidating the death plea provision (1972), Funicello, invali- over, 60 N.J. the Court State proposi- statute, bridling grisly at “the the dated [alternative] death____” at 82 Id. must risk every that defendant tion J., (Francis, dissent- C.J., concurring); id. at 100 (Weintraub, cf. provision is to vult (“The of the non ing) result of excision put to trial to be degree murder defendant require every first guilt and upon to decide called jury, which will be before result, it harsh but agree I this is a imprisonment. death or life Supreme Court the United States inevitably from follows fiat____”). course, precedent Of under federal there is bar no determining death-eligibility during penalty phase. the It is clear, however, broad, subject nearly all-inclusive, that to such a possible class of defendants to a usurp death sentence is to the policy State, Court, historical of this and of this capital that punishment an extreme imposed only sanction to be the egregious most cases.20 To the extent that the class is broad- ened, therefore, comparison prior the with the statute is entire- relevant, ly any imposed upon death sentences defendants who would not have death-eligible been under this state’s long-standing degree are, definition of first nothing murder if else, comparatively likelihood, disproportionate. moreover, juries results, will arrive at given consistent variety of states-of-mind and contemplated circumstances by such a sweeping statutory murder, capital definition of is remote to say least, as is the likelihood that this Court will able to meaningful conduct a comparative appellate review. Jersey’s “saved,” short,
New only statute can be if the aggravating applied in penalty phase factors circumscribe substantially death-eligible the class of murderers. This unwillingness Court’s historical subject large numbers of degree first murder defendants under the old statute possible death sentence counsels in favor of requiring a narrow- death-eligible er definition of offenses guilt phase, at the against the sweeping death-eligibility provisions of N.J.S.A. 2C:ll-3(a)(l) (2).
2. murder, If alone, the broad definition standing fails to distinguish offenses, adequately arguable it is majority my plea 20The finds reliance on the function the non vult in this given purpose demonstrating context "ironic dissent’s overall that the arbitrarily applied.” dispute Ante at 195. do current Act will be I statute; underlying plea arbitrariness use non vult under the former *217 insist, however, upon validity policy underlying I do the its use as subject only egregious degree affirmed in Funicello —to the most first murder- penalty. ers to the death by narrowing the aggravating any the factors cure overbreadth death-eligible argument depends on two class of offenses. This (1) that, assumptions: prejudice that no results from the fact scheme, Georgia aggravating Jersey the factors in New unlike guide jury to narrow the class the in the serve both selection; (2) important function of death and most discrete aggravating sufficiently that the factors themselves are clear I narrowly actually reject drawn to narrow the class. both assumptions. statute, noted, provides global
Our
a
definition of death-eli
“saved,”
gible murders. The overbreadth of this definition is
scheme,
Georgia’s
“aggravating
by interposing
as in
factors”
that must be found
the
to determine which murderers
Zant,
punishment.
Supreme
qualify
capital
for
Court
factors,
aggravating
approved this limited definitional use of
ruling
Georgia,
finding
aggravating
“in
circum
of an
play any
guiding
sentencing body
role in
in
stance does
discretion, apart
exercise of its
from its function of narrow
ing
persons
eligible
penalty.”
the death
the class of
...
for
at
Other
absolute
applied restrictively
clearly,
ad-
penalty statutes
have
problem defining
particu-
some
by
this structural
with
dressed
larity
specific
at the outset the
kinds of murder considered
(Supp.1986).
“capital murder.” See Cal. Penal Code
190.2
§
schemes,
guilty
Under these
once a defendant
found
criteria,
jury’s
according
pre-established
capital murder
guided
objective
by
then further
additional
stan-
discretion is
“capital
mur-
sentencing
dards
defendants thus convicted of
der”;
(Supp.1984);
see
13A-5-40 to 52
Ala. Code
Ariz.Rev.
§
13-703,
(1978
StaLAnn.
13-1105
& Supp.1984);
§
Ill.Rev.Stat
ch.
(Supp.1984);
9-1
14:30,
§
La.Rev.Stat.Ann.
La.Code
§
Crim.Proc.,
(1984);
arts.
905.9
Miss.Code Ann.
97-3-
§
19(2), 97-3-21 (Supp.1984);
630:1,
N.H. Rev.Stat.Ann.
630:5
§
(Supp.1984);
19.03,
Texas Penal
Ann.
Code
Texas Stat.Ann.
§
(1981
C.C.P. art. 37.071
Supp.1984);
&
Utah Code Ann.
76-3-
§
207,76-5-202 (1978& Supp.1984).
words,
In other
death-qualifi-
21Consider,
instance,
raped
a circumstance in
which woman is
before
death,
arguably
c(4)(g)
satisfying
c(4)(c).
circumstance
both
To the
aggravating
murder,
extent that the
capital
prosecu
factors serve to define
introduced, see,
Harris,
e.g.,
tion
People
will insist that both
factors be
v.
448-50,
797-99; however,
CaLRptr.
at
P.2d
the murder is not
aggravating
determined to be
weighed,
murder until the
factors are
weighed
they
if
are
capital,
they
so as to render
the murder
will then
automatically—without further
deliberation—serve
call for the
sen
death
See,
State,
—
e.g.,
denied,
Wiley
(Miss.),
tence.
484 So.2d
351-52
cert.
U.S.-,
(1986) (Marshall, J., dissenting
107 S.Ct.
3. discretion-guiding The intended definitional and function of aggravating vagueness factors is undermined case, principal implicated c(4)(c). Aggravating factor this e(4)(e)permits factor to consider whether murder “[t]he outrageously vile, wantonly was or horrible or inhuman torture, depravity it aggravated battery involved mind or an 2C:ll-3c(4)(c). Gregg the victim.” Georgia, N.J.S.A. atU.S. L.Ed.2d at Supreme acknowledged is, course, arguable Court that “it any murder depravity involves of mind an aggravated battery,” but insisted that “there no reason to assume that Supreme Georgia adopt Court of will open-ended such an construction____” *220 majority similarly The today acknowledges provision of troublesome because its obvious “[t]he vagueness. Merely quoting proof it is the best of that fact.” admits, moreover, majority at 198. The Ante the results attempts of in other states to the application limit of their c(4)(c) provide examples versions of factor “often better not followed.” Ante at 205. majority persists, nonetheless,
The in attempting limiting factor, construction of reading statutory of out lan- guage vile, both “outrageously wantonly horrible or phraseology legislature’s inhuman” and the recent amendment “aggravated that would include as an aggravating assault” clarity narrowing achieved, factor. Sufficient can be believes, majority by focusing mind; on the defendant’s state of (1) encompasses the standard that results murders “in which the defendant intended to physical cause extreme or mentаl death, suffering” prior only actually but where the victim suffered, (2) pain felt manifesting deprav- as well as murders mind, where, ity words, in other “the murder was not the product greed, envy, revenge, or another of those emotions ordinarily associated with murder purpose and served no at 207- beyond killing____” defendant Ante pleasure his 209. majority’s blush, appears, construction at first both novel submit, however,
and narrow. I that when seen in the context of the application efforts of other states to limit the factor, majority’s just attempt effort is one more salvage incurably vague by rewriting an standard it.
There can be no better illustration of
vagueness
the incurable
c(4)(c)
of factor
than the attempts
jurisdictions
of other
to limit
application.
its
attempts
These
have been characterized
an
narrowed,
initial
convincing-
assurance that the factor will be
sounding
standard,
statement of
gradual
the narrowed
and a
temporizing expansion of the standard until it becomes unre-
cognizable.
Rosen,
‘Especially
Richard A.
See
“The
Heinous’
Aggravating
Capital
Circumstance in
Cases—The Standardless
Standard,”
(1986).
Indeed, every
64 N.C.L.Rev. 941
state
whose
paralleled
construction of the “vileness” factor has
majority’s in
limiting application
of the factor to “serious
physical abuse”
“proven
provide
before death has
... unable to
identifiable,
any
consistent,
other
meaningful
limitations on
especially
heinous circumstance.”
Id.
968. What has
emerged
hoc, standardless,
pattern
“is a
of ad
and after-the-
making—a
fact
pattern
judicial legislation.”
decision
Id.
Thus, Georgia,
State,
Harris v.
237 Ga.
230 S.E.2d
(1976),
denied,
cert.
U.S.
Yet as Justice in noted four later Godfrey, Georgia had either that intention or “its abandoned understanding remarkably of the ‘core’ had become inclusive.” 396
Godfrey Georgia, supra, 446 436, 1768, at U.S. 100 S. Ct. at 64 L.Ed.2d at 411 (Marshall, J., concurring).
As Godfrey, by Supreme the Georgia Court noted in the 1977 Supreme Court had separate reached three respect conclusions ing (b)(7) aggravating opinions factor as in evidenced State, supra, Harris v. 237 Ga. 718, 1 Blake v. 230 S.E.2d State, 292, 637, Ga. cert. denied, 960, U.S. S.E.2d 98 S.Ct. 492, (1977). The Godfrey Court noted L.Ed.2d approvingly: them “outrageously first The was that the that the evidence offense was or wantonly vile, horrible or inhuman” had to demonstrate of an "torture, mind, or depravity aggravated to the victim.” The second was that battery the phrase, “depravity mind,” of the kind of mental state led the comprehended murderer to only aggravated killing or torture to commit an before victim. third, his battery derived from Blake that the alone, was must be word, “torture,” construed “aggravated materia with so as of pari battery” evidence serious require U.S. at abuse of the victim before death. S.Ct.
physical
1766,
[446
(footnotes omitted).]
In the wake of Godfrey, Georgia court redefined the State, scope In Hance v. factor. 245 Ga. this 268 S.E. cert. 449 U.S. denied, 2d 101 66 L.Ed.2d (1980), rejected the court a contention that the factor had through applications. become a “catch-all” varied The court reestablished required uphold and refined criteria this factor case. aggravating major This circumstance consists of two statutory components, (I) the second of which has three as follows: The offense of sub-parts, murder outrageously (II) or was vile, horrible or inhuman in that it involved wantonly (A) aggravated (B) (C) to the to the or victim, victim, torture battery depravity * * * “[wjhether determining of mind of the defendant. the evidence jury’s judge’s findings aggravating
supports circum- [this] statutory * * (Code 27-2537(c)(2)), stance *. Ann. evidence must sufficient §
397
major
aggravating
the first
satisfy
of
circumstance
component
statutory
and at least one
of the second
as herein-after
set forth.
sub-part
component,
268 S.E.id at 345
[Id.
(citation omitted).]
at
861,
Godfrey
Hance,
Both
Georgia Supreme
before
and after
Court has found torture supported whenever
victim
antici-
pated
prospect
State,
303,
of death.
Rivers v.
250 Ga.
See
(1982);
State,
718,
The
court has also
from its
conclu
“depravity
comprehended
sion
only
that
mind”
that mental
state that
led
murderer to torture or
his
batter
victim
suggests
before death. That
depravity
conclusion
that
could
independently
not exist
battery.
of torture or
If it was ever
seriously applied,
interpretation
completely
has
erod
been
Georgia
ed. The
court
physical
has found that
harm to the
support
finding
victim after death will
depravity
of mind.
State,
868,
denied,
316,
See Fair
245
Ga.
268 S.E. 2d
449
cert.
986,
407,
(1980) (defendant
U.S.
101 S.Ct.
ing in factor other states contradictory. has also been Florida’s application heinous, of “especially atrocious or cruel” has been especially erratic. Since that court infused a “conscienceless or pitiless” limitation, “torture,” meaning evidenced into the of aggravating Dixon, this 1, factor v. State 283 2d 9 So. (Fla.1973), denied, 943, 1950, cert. 416 94 U.S. S.Ct. 40 L.Ed.2d (1974), applications 295 appear the factor strayed to have any Compare State, from definite “core.” v. 438 Mason So.2d 374, denied, (Fla.1983), 1071, 1330, 379 cert. 465 U.S. 104 S.Ct. (1984) (heinousness 79 751 supported by pain L.Ed.2d victim’s by stabbing; lingered, ful death unable to breathe and “[she] her”) happening State, aware of what was with v. Teffeteller 840, (Fla.1983) (“[t]he 439 So.2d 846 fact that the victim lived couple pain for a hours undoubted and knew that he was facing imminent not death ... does set this senseless murder ...”), apart denied, 1074, 104 1430, 79 cert. 465 S.Ct. U.S. L.Ed. (1984). 2d 754 some While the court in cases has adhered to the Dixon, see, requirement e.g., State, Pope torture set forth in v. (at 1073, (Fla.1983) 441 gunshot least So.2d 1078 three wounds causing and bludgeoning prior by drowning); death Wilson
399
State,
908,
(Fla.1983)
436
2d
912
(beating
So.
with hammer
prior
killing by shotgun);
State,
962,
Bottoson v.
443 So. 2d
(Fla.),
873,
denied,
223,
966
cert.
83
469 U.S.
105 S.Ct
L.Ed.2d
(1984) (abduction,
153
times,
stabbing fourteen
and run over
car),
with a
the court has allowed factors distinct from this
“torture”
to enter
analysis
particu
focus
into the
whether
See,
State,
lar murder is heinous.
e.g., Breedlove v.
413 So. 2d
(Fla.),
denied,
cert.
U.LS.
S.Ct
L.Ed.2d
(1982) (while
pain
single
suffered from a
wound
stab
alone
might
heinous,
cruel,
atrocious,
make this murder
bed).
lay
attack occurred while the
asleep
victim
on his
State,
(Fla.),
denied,
In Magill v.
this or
factor
is
facts must be
Instead,
the
any
applicable.
light
addressing
considered in
cases
the issue and must be
prior
compared
weighed
light
and contrasted therewith and
2d at
thereof.
428 So.
651.]
[Id.
experience
Georgia
The ad hoc
and Florida courts has
replicated
employing aggravating
been
the other states
c(4)(c). Thus, Arizona, which,
majority,
factors akin to
like
depravity
takes the
to the
state of
view that
refers
defendant’s
mind,
upheld
has
death
based
sentences
on the factor “[w]he-
proved
never
has
to the
anything about a murder
offensive
Rosen,
See,
court.”
e.g.,
at 980-81.
N.C.L.Rev.
(death
(1980)
Ceja,
State v.
126 Ariz.
their constructions when the constructions like majority’s, physical death). limited to abuse before This comprehensive state-by-state most analysis of the case law concludes: legislature The must a standard of sufficient definiteness to limit the provide juries courts. discretion of that the terms shows Experience “heinous, “outrageously atrocious or cruel,” mind,” and wanton or “depravity vile, largely inhuman” cannot this function. terms, These because are perform they subjective eighth so laden, and emotion under the cannot, amendment, limit the eligible meaningful class of the death those for basis to provide distinguish are to die the few who from the who are to live. many cannot, They as the fourteenth define required amendment, and limit by adequately elements that must cannot, prosecution prove____ They required by eighth both the and fourteenth channel amendment, sentencer’s sufficiently discretion to or at least eliminate, minimize, the possibility arbitrariness, [Id. and discrimination.
capriciousness,
990.]
I
persuaded by
experience
am
this decisional
from other
c(4)(c)
states
aggravating
intractably
factor
vague.
It
sensibly
cannot be
clarified so as to overcome the intolerable
vague
risk that it
in virtually
will be
all contexts and hence
produce
unacceptably arbitrary
capricious.
results
That
this
vagueness
inherent
infects
majority’s attempt
to limit
the factor
exposing
is best seen
its construction to a real-
Newlon,
(Mo.)(en banc),
world test.
State
2d 606
S. W.
denied,
(1982),
cert.
459 U.S.
Nor are the
unequivocal.
factors
supported
court
jury’s finding
“held that the
was
the evi
dence that defendant shot twice: if
still
the victim
was alive
shot,
suffered;
after the first
the defendant must have
if the
shot,
victim died after
first
the second shot showed a
Rosen,
purpose
corpse.”
to mutilate the
64 N. C.L.Rev.
985; Newlon, supra,
majority’s
to death makes the (and of mutilation thus depravity) 209, n. likely. Ante at 35. insistence, majority’s
The finally, that definition of this “[t]he kind of murder is not vague,” 210, highlights once ante at more the structural infirmities of the may legitimate Act. It be concerned, for society to be capital murder, with “the com- plete society’s point view, absence—from any of the recognizable motivations or emotions ordinarily explain murder”; believe, however, I that this concern reg- should be istered—from point the defendant’s of view—earlier than when the sentence imposed. is
Aggravating circumstances are
determining
used in
who
among the class of all murderers
death-eligible.
is
In this
sense, these factors define the
capital
elements of
murder. See
discussion, supra, at 391-392. The factfinding necessary to
determine if
capital
the murder is
murder occurs in the sen
tencing rather
guilt phase; moreover,
than the
the identical
factfinding
necessary
to determine if the murder is to be
punishable by
Thus, in
process
death.
the same
jury
considers aggravating factors to determine if the murder is
murder,
capital
it also must use the aggravating factors to
determine if
statute,
the sentence is death.
In our
because the
definition of
murder is all-encompassing, and it is “nar
rowed”
aggravating factors,
resort
vagueness
c(4)(c)
very
infects the
definition of the crime.
State v.
Cf.
Payton, supra,
(“vileness”
We must the that the when is the circumstance, charged special exercising sentencing truth it is function therefore, that, requirements process clarity the of due for narrowness Proceedings penalty, sentencing, phase are lessened. do not move into the or degree special after until a defendant is convicted of first murder and the true____ regard circumstance is found to be The ... to fact be found to the special potential deprivation liberty circumstance is no less crucial to the for of crime____ underlying then ... are the elements of the [/<£] Although differs, the the Jersey structure of New statute aas matter of its of effectively basic definition murder the statute telescopes the narrowing death-eligi- definitional of the class of jury’s finding aggravating ble murderers with the of factors at sentencing. vagueness c(4)(c), Jersey factor in New no California, than in less both infects the death-selection and the death-eligibility determinations.22 capital
Whether seen as elements the offense of murder or sentencing stage, as factors the class used narrow at the the aggravating realistically must as a circumstances act limit on contrast, Virginia, by capital 22In murder serve to elements narrow the outset, death-eligible significantly class at the such murderers sentencing, defining only vileness factor is than as a used rather element of (For respective satisfy example, class. Mr. Ramseur’s crime does not (1982).) capital Virginia. elements of murder in See Ann. 18.2-31 § Va.Code Georgia, death-eligible degree In Tennessee and is first class limited to murderers, respectively, although both states construe this limitation rather (1984); (1982). broadly. See Ga.Code Tenn.Code Ann. 39-2-202 16-5-1 category otherwise over-inclusive of murder. The structur- statute, merges al vice of our which the classification and sentencing death-qualification functions—the defendant compounded by death-selection decisions—is its use of a critical aggravating factor itself inscrutable and overbroad.
B. There concluding are additional reasons for that the state capital murder-death statute is unconstitutional because arbitrary it fails to eliminate real risk of enforcement. The statutory global murder, infirmities—the definition of vagueness overbreadth and of the statute’s most critical factor, aggravating merger and the of the defendant death- *228 qualification determinations—highlight and death-selection an- equally other profound in capital constitutional weakness penalty murder-death scheme.
Just as guide the statute fails to juries its most critical points application, of it fails to prosecutorial judicial channel or ways discretion in that could reduce the threat arbitrariness. On occasion acknowledged possibility we have for abuse in justice administration criminal given the broad discretion prosecutors are entitled to in bringing prosecu- exercise tions. We in Ringwood Comm., observed In re Factfinding (1974), prosecutor’s N.J. that a discretion in selecting matters for prosecution is broad “is not unregulated but it or may, appropriate absolute and in circumstances be reviewed for Gledhill, arbitrariness or abuse.” See State v. N.J. (1975). prosecutorial
There was a when time discretion to determine penalty whether the death pursued recognized should be was a factor that benefited a defendant. re See In Waiver Death however, Penalty, supra, was, 501. 45 N.J. This the context adequately regulate of a statute that did not itself through careful proper procedures substantive standards or the decision particular capital to treat a murder as a crime for which the capital murder- imposed. The current is to be penalty death guide prosecu- provides no standards to statute death capital may prosecuted for in terms of who be tor’s discretion (1984), required McCrary, 97 we In State v. N.J. murder. held to hearing capital prosecution in a murder be pretrial that a alleged by prosecu- aggravating factors whether determine Nevertheless, the adequately supported by evidence. tor were evidentiary showing, by slight permitted this to be done Court of an avoid the dismissal greater required than that to one no view, burden, evidentiary my is insufficient That indictment. reasonable, well-founded that there is a to assure a defendant at 147 capital him her for murder. Id. prosecute basis J., particularly light so in (Handler, concurring). This is c(4)(c), factor will be many aggravating murders the fact that vague. only is it hopelessly Not insuffi- which is overbroad discretion, guide prosecu- it is insufficient guide cient to torial discretion.
Thus, the govern prosecutorial standards that decisions leave prosecutor virtually unfettered in terms of who should be prosecuted capital Any prosecutor murder. position is in a classify almost any murder as a offense. His deci- sion, though conscientious, necessarily must highly subjec- speculative. decision, tive and moreover, virtually un- prosecutor checked. While the notify must defendant of the grounds decision, for the evidentiary support that must be *229 to shown sustain that light. decision is The inevitability of in system prosecutorial arbitrariness a in which discretion is unfettered is verified in the results—albeit preliminary—of the Public Defender’s study Reimposition The Capital Punish- ment in New Jersey: 1982-1986, Homicide Cases which from suggest that “there discrepancy is an enormous between the way prosecutorial in which discretion is exercised in each com- munity. Every county prosecutor autonomous, politically is predilections and the practices enormously____ ... differ preliminary demonstrate, As the data from these 568 cases of applying different methods the statute have been institution- jurisdiction, alized each there discrepancies are enormous procedural on both substantive and matters.” Id. at 3-4. it clear prosecutorial prosecute Hence becomes decisions to standardless, basically murder are and there is no procedure adequately provide that will intercept screen to those defendants who not be for capital should tried murder. comparable infirmity
A
exists at the other end of the death-
penalty tunnel. The statute
as enacted—and
effect when the
companion
prosecuted—re-
defendants
this and the
were
case
quired proportionality
my
opinion
review.
this is constitu-
tionally essential. The
with
statute
its serious
flaws
over-
breadth, vagueness,
blurring
decision-making,
and the
may
discretion,
which
prosecutorial
added unchecked
grossly
provide
if it
defective
cannot
an ultimate fail-safe that
rectify
injustice
could otherwise
spare
individual
life
improvidently
defendant
sentenced to death.
trial,
It cannot be overstressed that at the time of his
defend
automatically
ant
have
would
been entitled
to “proportionality
Subsequently,
review.”
provide
the statute was amended to
for proportionality
only
requested,
review
when
presumably in
Harris,
response
supra,
37,
871,
v.
Pulley
U.S.
Ct.S.
Given assurance that it is “not reasoning follow of all [post-Gregg these United States ] Supreme interpreting Court decisions in our own state constitu- protections,” comprehend it is difficult to tional ante at Harris, legislature’s—reliance Pulley on its—and U.S. L.Ed.2d which held that proportionality review is necessarily mandated eighth hardly question amendment. This answers the whether *230 it is mandated as a matter of fundamental fairness under our State Constitution.
Proportionality
unique
review has a
capital
function in a
prosecution.
murder
It seeks to determine whether the death
penalty
“unacceptable
particular
in a
dispropor
case because
punishment imposed
tionate to the
on others convicted of the
same crime.” Id. at
at
The majority itself “proportionality observes that review through is a means imposition which to monitor the of death thereby prevent any sentences and impermissible discrimina- penalty,” imposing and, the death ante at further, tion important procedural that it “is an safeguard mechanism to against arbitrary capricious imposition of the death penalty,” ante at 330.
I am convinced that as a matter of fundamental fairness murder-death convictions under our current require proportionality may statute must It review. well be paradox acknowledged by majority—of that the attempting uniformity process to assure guarantees at the end of a an prove individualized assessment of the defendant—will unre- solvable; system to the extent that our seeks to assure both individualization, however, uniformity proportionality re- indispensable monitoring efficacy. view is its To the extent *231 moreover, proportionality optional, review is any that made case in which review is exercised where review would have the irrevocably vacated sentence all prejudices by future cases lowering imposed the of properly threshold death sentences. statute, submit, I procedural The is rife with substantive and strongly deficiencies that demonstrate the real likelihood of arbitrary application. Supreme The clearly Court in Pulley recognized propоrtionality may only review be obviated capital the provides where murder scheme substantive and safeguards procedural against arbitrary capricious other sentencing. Our not. does
D. Thomas Ramseur was convicted and sentenced under stat- ute relating that violates our own constitutional standards to punishment process cruel and unusual and due of law. The clearly fails markedly strictly statute and kind define the ought capital murder that in considered nature. Its for attempting mechanisms to narrow confine and the definition attempts give of murder and this Court’s this definition clarity certainty inadequate. and The fact aggra- are that the vating proceeding factors are used the same to define the compounds offense and to high determine sentence stemming inadequate risks of arbitrariness from standards. any the scheme of absence other measures that could arbitrariness, rectify guided ameliorate or prosecutorial such appellate proportionality sentences, and discretion review of underscores arbitrariness of the scheme.
III. important involving Defendant raises several issues his con- rights by properly stitutional to indictment and trial constituted juries. These juries, issues concern the manner in which the grand petit, both were selected. Defendant asserts that respective juries impartial neither were fair nor a representative and, further, cross-section community, of the court, that the petit trial the selection of the jury, improperly limited possible voir dire examination into racial bias. addition, defendant contends trial of issue of guilt criminal before a death-qualified, that has been under bifurcated trial scheme of the murder-death statute, satisfy fails to requirements constitutional aof trial impartial a fair jury. Because these issues in the arise prosecution context of a criminal that can—and did—eventuate in the imposition disagree I penalty, strongly death with position practices Court’s that conventional standards and *232 gravity enable us to overlook the these jury-related errors. I therefore dissent from the Court’s determination none of that upon the serious deficiencies attendant the selection use of and juries the in this case warrants reversal of defendant’s conviction and sentence.
A.
challenges
composition
grand
petit
Defendant
the
and
juries that
used
respectively
were
his criminal indictment and
argues
trial
conviction
sentence. He
that the
used
method
jury
underrepresentation
selection resulted in
of blacks in
right
equal
right
violation
to
protection
of his
of the law and his
by jury
representative
be indicted and tried
drawn from a
the community.23 Specifically,
cross-section of
defendant con-
grand
petit
tends
Essex
County
that the
source list for
and, therefore,
jurors
underrepresentative
was
of blacks
resulting pool
qualified
the
chosen from
list was
jurors
this
unconstitutionally unrepresentative under the sixth amendment
equal
the fourteenth
as
protection
and the
clause of
amendment
I, paragraphs
well as
9 of the State
Article
5 and
Constitution.
blacks, women,
alleged
groups,
23Originally,
low-income
defendant
young
unconstitutionally
people,
were
under
students
Newark residents
only
improper
represented.
upon
alleged
Court
the
focuses its attention
exclusion of blacks.
challenges
also
by
grand jurors
He
the method
which
were
empaneled individually,
selected and
procedures
as
aswell
the
grand
jury forepersons.
used
select
grand
In
County,
jurors
Essex
and petit
are chosen from a
containing
list
registered
the names of all
voters and licensed
drivers
lists,
of motor vehicles.
2A:70-4.24 These
N.J.S.A.
acknowledged by
majority
by
record,
the
and demonstrated
clearly underrepresentative
are
213-214;
of blacks.
at
Ante
addition,
410-417.
this underrepresentation is
infra
by
exacerbated
empaneling procedures
individualized
used
by
assignment
judges in
County.
Essex
As noted
majority,
procedures
these
highly subjective
were
and focused
upon
Moreover,
racial
grand
considerations.25
jury
once each
selected,
assignment
was
judges
highly
used a
subjective
grand
selecting
jury forepersons.26
method of
challenges
Defendant’s several
rejected by
were tried and
Ramseur,
(Law
court below. See State v.
The trial court this N.J.Super. at supra, n. and found that the absolute disparity percentage County the in Essex between blacks percentage qualified on the and source lists was 14.1 and the noted, respectively.28 majority does percent and 14.6 As Ante quarrel 214-215. figures. with these deter mining disparity acceptable the court did not utilize two other techniques—the comparative disparity and statis measurement significance dispari methods—because it felt that absolute tical ty simplest measure and the one used the United was on this issue. See Supreme precedents Court in three States Ramseur, N.J.Super. n. State at 573 3. contentions, important In order to resolve defendant’s it is explain legal within his constitu- first to framework which may court rights analyzed. must A defendant state tional jurors list from which challenge representativeness First, grounds. are chosen on two federal constitutional protects protection of the fourteenth amendment equal clause invidiously discriminates defendant from state action that people of which the defendant is a against a distinctive class juror’s geographically-inferred race based on method determines a 27The juror’s neighborhood. composition of the This inferences drawn from the survey total was the the source list was black. This indicated that 17.9% of though survey surveys. this The defense claimed that even lowest of the three higher sample, weight given a much because it used could have been more methodology giving experts the three "conservative" decided to use more equal weight. samples disparity: women in the the absolute between 28The court also found that respec percent population qualified was 6.0 and 6.7 and the source and lists qualified respect persons tively; list was 12.2 to low-income on with percent percent; the source list and 15.7 residents was 9.2 and for Newark Ramseur, supra, N.J.Super. qualified at 573. percent State v. for the list. *234 412 juror-selection context,
member.
In the
equal protection
an
procedure
violation occurs when “the
employed resulted in
underrepresentation
substantial
of his race
ofor
the identifia-
group
belongs.”
Partida,
ble
of which he
v.
Castaneda
430
482,
1272,
494,
1280,
498,
(1977).
U.S.
97
51
S.Ct.
L.Ed.2d
510
action,
Because the
applies
fourteenth amendment
all
to
state
developed
gauge
the test
to
applies equally
discrimination
grand jurors
jurors.
the selection of
petit
The sixth
is
amendment
the second federal constitutional
ground
may
be available to a state defendant. The sixth
right
amendment
impartial jury requires
trial
an
petit
juries be drawn from a “cross-section of
community.”
Co.,
217, 219-220,
Thiel v. Southern
328 U.S.
66 S. Ct.
Pacific
984, 985,
1181,
(1946).
90
requirement
L.Ed.
This
is based
principle
on the
jury
that a
determination
truly
can
fair and
beliefs,
impartial only
attitudes,
if the
perspectives
of the
community
represented.
whole
are
See Ballard v. United
States,
187, 194,
261, 264,
181,
329 U.S.
67 S.Ct.
91 L.Ed.
(1946) (“a flavor,
quality
a distinct
is lost if either sex is
Louisiana,
excluded
jury.]”);
522,
v.
Taylor
419 U.S.
[from
530,
692, 698,
690,
(1975)(“The
95 S.Ct.
purpose
L.Ed.2d
guard against
of a
is to
arbitrary power—to
the exercise of
make
judgment
available the
community
commonsense
hedge against
as a
prosecutor
the overzealous or mistaken
in preference
professional
to the
perhaps
overconditioned or
response
judge.”).
biased
of a
requirement,
The cross-section
“fundamental to the jury
guaranteed by
trial
the Sixth Amend
ment,”
Louisiana,
Taylor
530,
v.
419 U.S. at
S. Ct.
697,
42 L.Ed.2d at
has been applied
through
to the states
Louisiana,
fourteenth amendment. Alexander v.
405 U.S.
(1972);
Fouche,
413
a constitutional
Partida,
violation. Castaneda v.
supra, 430
482,
1272,
U.S.
97
498;
S.Ct.
51
Fouche,
L.Ed.2d
Turner v.
supra,
346,
532,
396
567;
U.S.
90 S.Ct.
24 L.Ed.2d
Carter v.
Comm’n,
Jury
320,
518,
396 U.S.
90
24
S.Ct.
L.Ed.2d 549
(1970);
Georgia,
545,
643,
Whitus v.
385 U.S.
87 S.Ct.
17 L.Ed.
(1967);
2d 599
Alabama,
202,
824,
Swain
380 U.S.
85 S.Ct.
(1965),
However, the sixth
proscriptions
amendment’s
apply only to
juries
and, therefore,
chosen for trial
powers
do not limit the
government
federal or state
grand
jurors.
select
It is
right
the fifth
“presentment
amendment
to a
or indictment of a
Jury”
requires
Grand
which
grand
that federal
juries be select
ed from a cross-section of
community.29
Texas,
Smith v.
128,
164,
311
(1940).
U.S.
61
right
S.Ct.
S.Ct.
31 L.Ed.2d at
California,
Hurtado v.
516, 538,
111, 122,
(1884).
U.S.
(1969),
interpreted
provision
we
this
as requiring
grand
designed
selection “be so
juries
as to insure that
are
impartially
community
drawn from
cross-sections.” See also
*236
Porro,
269,
v.
N.J.Super.
(App.Div.),
denied,
State
158
272
cert.
1047,
724,
(1978);
439 U.S.
99
N.J.Super. 325.
Regardless
grounds
state
federal
whether
are em-
ployed, federal
analysis remains instructive
terms of under-
standing
right
impartial jury.
fair and
constitutional
to a
that the
right
jury-selection
Defendant has the
demonstrate
system
provide adequate
cognizable
fails
representation
groups, in
his
which event
conviction must be considered invalid
regardless
prejudice
of whether actual
was suffered. See
254,---,
617,
Hillery, 474
Vasquez v.
U.S.
S.Ct.
622-24,
598,
(1986).
Missouri,
88 L.Ed.2d
607-09
Duren v.
664,
(1979),
Supreme
439 U.S.
L.Ed.2d 579
evaluating
Court set forth the framework for
fair cross-section
claims under the federal constitutional entitlement to a fair and
First,
impartial jury.30
prima
the defendant must establish a
requirement
case that
the fair cross-section
has been
facie
violated, by showing:
(1)
group alleged
group
that
to be excluded is a “distinctive”
in the
(2)
group
of this
in venires from which
community;
representation
juries are selected is not fair and reasonable in relation to the number of such
(3)
in the
this
is due to
persons
community;
underrepresentation
group
jury-selection
exclusion of the
at
[Id.
systematic
process.
at 587.]
S.Ct. at
58 L.Ed.2d
prima
showing,
Once the defendant has made this
facie
justify
infringement
this
burden shifts to the state to
right “by showing
defendant’s
attainment of a fair cross-section
incompatible
significant
to be
with a
state interest.” Id. at
It is not sufficient that
With to the first “singled grouр must have been out group is “distinctive”—the v. Parti- for different treatment under the laws.” Castaneda 1280, da, 494, at 510. 97 at 51 L.Ed.2d supra, 430 U.S. at S.Ct. that support the conclusion blacks No discussion is needed to purposes jury selection group for constitute a distinctive grand juries, challenge unlike a of state noted, a to the composition 30As challenge jury, clause rather than to the involves only equal protection petit that the source list However, defendant contends the sixth amendment. grand jurors drawn, are is list, from which both petit qualified sixth amendment claim Thus, defendant’s substantially underrepresentative. this courts have followed Other state be considered in this context. may in similar situations. approach 416 Mitchell, v. Rose
challenges. 545, 565, 2993, U.S. S. Ct. 443 99 Alabama, supra, 3005, 739, Swain (1979); 61 L.Ed.2d 756 300 U.S. 202, 824, 85 S.Ct. Georgia, 759; Whitus v. 13 L.Ed.2d supra, 385 U.S. 545, 643, S.Ct. 599; Strauder v. 87 17 L.Ed.2d (10 Otto) 303, Virginia, West U.S. 25 L.Ed. 664 100 (1879). prove significant defendant must next underrepresenta- cognizable tion group. Such underrepresentation comparison shown proportion of the group in the to- population tal proportion to the jurors. called to serve as Under clause, equal protection underrepresentation such must be significant period of time. See Castaneda v. substantial over a Partida, supra, 430 U.S. at 493, 1279, S.Ct. L.Ed.2d at 97 at 51 amendment, 509. Under the sixth the defendant must show representation that group of the in venires from which juries are selected is not fair and reasonable. See Duren v. Missouri, supra, U.S. S.Ct. at L.Ed.2d at 587. significant
Defendant’s claim of underrepresentation is based on the disparity statistical from using results the Essex County registration voter’s and licensed driver lists to create respect the source list. grand jury, With to the this claim is augmented by reference discriminatory practices to the assignment judges in selecting grand jurors. individual upholding In process, selection the trial court relied Alabama, supra, on Swain v. primarily U.S. case, L.Ed.2d 759. percent blacks constituted 25 population only relevant while the venire contained 10-15
percent Supreme underrepresen blacks. The Court ruled that tation on the purposeful venire of did not show 10% discrimina Porro, on State v. tion. The trial court relied also N.J.Super. Appellate in which the Division ruled that disparities Hispanics, for of 44% for blacks and 12% 13% permissible blue collar workers were because the disparities generated by problems list, were registration with the voter *238 Id. part systematic of a 280-81. exclusion. Thus, disparity the trial court ruled that an absolute of 14.1% (14.6 population qualified the for the list the between list) according nor source was neither substantial unreasonable Ramseur, N.J.Super. State v. precedent. to federal by reasoning The trial its at 581. court bolstered conclusion by any possible infirmity was cured the constitutional grand juror in the selection representation “fact” that black increased, decreased, process rather than as blacks moved system: representation list through that on the source 21.3% Id.31 representation qualified on the list. 21.8% my opinion, by percent the one-half one from In increase (21.3% 21.8%) insignifi- qualified to the list is the source list percent disparity there is of 14 at the outset. cant where event, proofs this ameliorative any the used demonstrate problematic.32 trend were noted: 31The trial court representation through process as we move the selection This increase post surveys with the the summons the [headcount] consistent results of jurors reporting jury service which race and sex of to the courthouse for NJ.Super. at [197 581.] was submitted state. permissible disparities because:
The court then concluded that the were petit jurors 47.64% were female and 32.20% were Of the 4450 observed black; grand jurors were and 24.61% were black. 52.74% of the female only significance figures an is obvious. Not is there increase these women, representation increase occurs in the of blacks and but the significant stage process terms of the defendant’s of the selection most trial, right among jurors report who to the courthouse for to a fair those jury service. Id. prosecution’s showed 24.61% of those who headcount 32The week petit reporting jury grand duty for appeared of those for and 32.20% However, Ramseur, supra, N.J.Super. at 16. black. State service were testifying prosecutor, correctly experts, Taylor defense as well as Dr. for prosecution’s and unac- pointed headcount was an unreliable out that percentage actually survey ceptable of blacks who from to conclude which survey- problem was appeared obvious and uncontrolled for service. The most jury system charge challenged very person who was in or bias—the survey. designed render the results This fact alone would and executed the statistically ordinary inquiry any valid reliable void in scientific large people problem the three number of Another was information. *239 418 ample
There
support
for defendant’s
a
contention that
14%
differential
population
qualified
between the
and the source and
presumption
See,
lists
a
e.g.,
raises
of discrimination.
Preston
Mandeville,
(5th Cir.1970) (29.3%
v.
The states that will assessing significance of others as the best method for the However, concluding 222. Ante at statistical evidence.” underrepresentation jury of on list not that the blacks the does violation, totally a the rise to the level of constitutional Court (SDT) theory of ignores the results the statistical decision decision test. statistical majority, provides “SDT a measure of the by
As noted
the
minority jurors
of
can be
percentage
the actual
extent to which
minority propor
expected
percentage
from
to differ
the
population
process
if the
is com
general
tion
selection
figure
indicates
this
is
pletely random. SDT further
whether
hypothesis
expected
at
with the
outcome that
so
variance
Ante at
rejected.”
be
ought
selection
random
of
221-222,
concedes,
a
added).
id. at
(emphasis
As the Court
than 2 or 3
that a result more
statistician would conclude
suspect.
expected
See
deviations from the
would
standard
17,
Partida,
496 n.
97 S. Ct. at
supra, 430 U.S. at
Castaneda v.
case, however,
17,
In
n.
n. 17.
this
Pac.
328 U.S.
66 S.Ct.
L.Ed. 1181
earners
Thus,
list).
jury
systematic
excluded
the
from
the
nature of
exclusion of blacks
subjectivity”
process
is reflected not in the
of the selection
"objectivity vs.
but
simply in
results.
its
reasoning
spurious.
is
It
dis
The Court’s
finds—then
clearly
the
regards—the fact that defendant has
demonstrated
group
jury-se
in the
“systematic
[cognizable]
exclusion of the
Missouri,
process.”
lection
Duren v.
439 U.S. at
tacit and
at
As selection licensed merged registered list of voters and ty utilized a generated. blacks from a source list was Since drivers which general popula in the appear frequently less on these lists than list, tion, from the source when names are chosen at random Thus, resulting substantially underrepresented. are blacks uti process selection underrepresentation is “inherent However, many courts system.” state lized” or “due to the on voter based systems—those that have dealt with similar underrepresentation is held registration lists—have that such system that the “systematic.” Presented the assertion with *242 registers with underrepresents particular group that to vote whole, reply community as a courts frequency less than the to of fail of the those who system this is not the fault but (9th 1121 See, Brady, 579 F. 2d register. States v. e.g., United 422
Cir.1978),
denied,
cert.
1074,
849,
484 U.S.
99 S.Ct.
54 L.Ed.2d
Test,
(1979);
United
41
supra,
States
577,
(10th
550 F.2d
586
Bowen,
Cir.1976);
State v.
17,
supra,
Or.App.
45
Moreover, notes, as the majority ante at 230-232, assignment judges’ procedure selecting panel grand each of jurors anything fact, was but neutral. In procedure this differs “key juror little from the man” system, selection utilized in states, many which has been “highly subjective” attacked as “susceptible and Partida, to as applied.” Castaneda v. abuse supra, 491, 497, U.S. 97 S.Ct. at at at L.Ed.2d Imperative 512.34 integrity legitimacy grand of the petit jury system requirement any is the biases from Mitchell, supra, Rose v. whatever source be minimized. In 555-56, U.S. 2999-3000, at L.Ed.2d at at Supreme said: Court grand jury they Selection members of a are because one race and not another destroys appearance justice thereby integrity casts on doubt judicial process. grand jury Negroes, any The exclusion from service group qualified serve, impairs public the confidence of the in the administra- justice injury injury tion of ‘The ... not limited to the defendant—there is system, institution, jury community large, to the law as an to the and to County system assignment may 34The Essex even worse because the race, sex,
judges expressly persons occupation, included or excluded based on contrast, many "key require and other variables. man" states good commissioners to choose men “of sound mind and moral character” who Partida, are literate. Castaneda v. atU.S. 97 S.Ct. at L.Ed.2d at 505.
423
[quoting
ideal
in the
our courts.’
Ballard
the democratic
reflected
processes
(1946).]
91 L.Ed.
261, 265,
181,
67 S.Ct.
187
187, 195,
329 U.S.
States,
v. United
assignment judges’ discretionary
of the mem
selection
grand
epitome
system subject
jury
bers of the
is the
of a
conclude,
should not hesitate to
under our own
abuse. We
Constitution,
susceptibility,
actual
that this
when combined with
underrepresentation,
right
properly
is violative of the
to a
Partida,
430
jury.
supra,
constituted
Accord Castaneda v.
510-11;
494-95,
1280,
97
at
51
v.
U.S. at
S.Ct.
L.Ed.2d
Whitus
at
L.Ed.2d
17
at
87 S.Ct.
Georgia, supra,
Moreover,
assignment judges’
exercise of discretion to
was,
subjective opinion,
what
in their
a fair cross-section
obtain
First,
protection
county,
equal
of the
violated
standards.
part in
judges
played
admitted that race
who was selected
practice
grand juries. Undoubtedly,
sit on the
this
was well-in
tentioned; however,
a conscious effort to estab
it constituted
This is as
grand juries
lish
based on racial factors.
obnoxious
Texas,
282, 287,
systemic
exclusion.
v.
339 U.S.
See Cassell
629, 631,
(1950) (plurality opinion); Ross
tial on blacks source list consti- tuted a rights violation of his equal constitutional to protection and a impartial Thus, fair and jury, grand petit. both his conviction must be regardless considered invalid of whether prejudice actual Vasquez was suffered. Hillery, supra, See at-, 622-24, at 88 L.Ed.2d 607-09. U.S. S.Ct.
B. Related to problem non-representative grand petit juries is whether the by refusing trial court erred defendant’s request to prospective ask jurors questions designed certain expose possible prejudice. racial The court trial limited defend- single ant to the question juror’s whether race would affect the ability verdict, to reach a fair impartial but did not allow any specific more or pointed inquiries as racial bias. See ante 243-245. The suggests Court this refusal was a poor judgment by repeated exercise of the trial court—not to be in future cases—but one that does not rise to the level of trial error, provide reversing let alone a basis for defendant’s convic- disagree. tion. I
The issue is whether there in this existed trial possibility” prejudice murder a “reasonable that racial could jury in its influence the decision to convict and sentence to death, Rosales-Lopez defendant—a black man. v. United 182, 191, States, 1629, 1635, 68 L.Ed.2d U.S. (1981). majority The no in the trial court’s finds error because, view, recognize possibility failure in its such a race premise was not an issue in this case. This is mistaken. majority’s position implicated that racial issues were not shown, in this case is unsound. As has been defendant was *245 indicted, by juries convicted and sentenced drawn from lists clearly underrepresentative that were of blacks. Ante at 222- Indeed, majority 223. itself underrepre- concedes that the “significant enough to jury sentation of blacks on the list was violation,” possible alert us to a constitutional ante at in “[gjreater representativeness obviously desirable” Moreover, future. purports Id. at 226. the Court to be life,” in reality prejudice to the of racial American “sensitive jurors in danger—particularly and to the case—“that her race.” The may prejudge a defendant because of his or instance, “[rjacial may operate, for prejudice Court notes that defendant is simply the defendant is because the when black regardless color.” black victim’s Id. at 247. (App.Div.1975), N.J.Super. v. Long, State denied, (1976), held that whether the court certif. N.J. failing racial-prej- to ask by court its discretion trial abuses case, the case. In this questions depends udice on the facts of from improperly from the source list blacks were excluded this grand petit juries drawn. When which both the were reality of racial conjunction in “the fact is considered with life”, prejudice possibility American that racial bias could an have insidious and invidious influence in the trial is en- hanced. These composition cumulative deficiencies—the invalid jury permit lists and failure to searching inquiry as to individual racial bias—constitute reversible error. Constitution,
Under our State
as a matter of fundamental
fairness,
procedures
defendant was entitled to have
invoked
right
that would maximize
by
impartial
his
to be tried
a fair and
jury.
Jersey
always
New
has
exceptional
evinced
with
concern
prejudice,
the evils of
exemplified by
racial
as
many
the State’s
strong prohibitions against
See, e.g.,
discrimination.
N.J.
Const,
I,
5;
(Law
para.
of 1947 art.
prohibiting
N.J.S.A. 10:5-3
discrimination);
(establishing
2A:72-7
penal
N.J.S.A.
criminal
for disqualifying
ties
person
jury
from
service on account of
race). Moreover,
consistently
this Court has
confirmed
right of a criminal
impartial
defendant to a fair and
aas
matter of state
jurisprudence.
constitutional
E.g.,
v.
State
Ragland,
(1986);
n.
427
(CA 1973).
Because of the of discretion entrusted to a in a capital hearing, prejudice there is a for racial but remain unique opportunity operate undetected____ prejudice infecting sentencing proceeding The risk of racial capital light the death sentence. “The serious in of the especially complete finality recognized of death from all other Court ... has difference qualitative greater degree correspondingly scrutiny punishment requires *247 428 — U.S.
sentencing determination.” 90 L.Ed. [Id. S.Ct. at at-, 1687-88, (citation omitted).] 2d at 35-6 This also recognized indispensable Court has the the role of expose in capital juror prejudice: voir dire cases to dealing Another indeed critical means for with and latent important, potential bias is the voir dire. The court consider should the of more exhaustive efficacy searching conducting dire voir examinations. The court in the voir dire regarding should be the to of counsel the particularly responsive requests jurors examination of The bias. court could consider prospective potential greater willingness there be a whether should doubts in resolve favor the excusing jurors in defendant for cause. trial cases, Particularly, judges jurors. should exercise care dire of voir extraordinary potential Williams, (1983) (footnotes omitted).] N.J. [State When prejudice questions racial are excluded from the voir dire, the trial ability prospective jurors court’s to remove is severely impaired as right is the defendant’s to exercise intelli gent challenges. Rosales-Lopez States, See v. United at Moreover, 451 U.S. at L.Ed.2d 28. the actual of requiring inquiry slight. costs are Id. at 101 S.Ct. at at 30. L.Ed.2d acknowledges Court searching that more dire voir and, against permitted indeed, directed racial bias be could However, preferred course. Ante at 247-248. this concession case, only praise. deserves the faintest In this has Court concluded that defendant suffered no constitutional violation and is any not entitled to redress. Admonitions to sensitize judges in the future and extirpate recommended measures to racial bias in capital murder trials cannot excuse the failure to have done so here. The trial court’s refusal this case to permit questioning such constitutes reversible error.
C. challenges Defendant of a death-qualified jury during use guilt phase of his bifurcated Death-qualification trial. involves removal of veniremen automatically (1) against
who clear would ma[ke] unmistakably vote they regard might without imposition evidence that capital punishment any (2) trial at the of the case before developed their attitude them, *248 penalty prevent making impartial toward the death would them from an decision the guilt. as to defendant’s v. 391 U.S. [Witherspoon Illinois, 510, 36 (1968).] n. 88 S.Ct. 1777 n. 785 n. 21 1770, 20 21, L.Ed.2d 21, 776, not challenge Defendant does group the removal of the second (known “nullifiers”) of veniremen guilt-phase from the jury, challenge nor does he the group removal the first from the However, penalty phase of the trial. defendant claims that the group guilt removal of the first the phase infringes from his right state constitutional to impartial jury. trial an He argues that the State guilt should not be able to at the exclude phase prospective determination jurors trial whose sole disqualification asserted inability consists their to vote for phase the death at the penalty of the trial. This claim upheld. should be Illinois,
In Witherspoon
supra,
Supreme
v.
Court held
that
jury hearing
capital
states could
exclude
a
from
case
all venirepersons expressing any scruples against capital pun
using
jury
ishment. The Court
that
determined
such a
penalty phase of
capital
a bifurcated
case would violate the
rights
defendant’s
under the sixth and fourteenth amendments.
518-23,
1775,
Id. at
at
L.Ed.2d at 782-86. The
Court noted that a
venirepersons
narrower exclusion of
would
permissible
hearing
limited context of a
penalty phase of a
“If
bifurcated trial:
the State had excluded
only
prospective jurors
those
stated in
of trial
who
advance
death,
they
returning
even
would not
consider
a verdict
it
argue
resulting jury
simply
could
that the
was
‘neutral’ with
520,
1776,
respect
penalty.”
to
Id. at
S.Ct. at
20 L.Ed.2d at
(footnote omitted).
36The standard for
was clarified and modified in Adams
death-qualification
(1980),
Wainwright
v. Texas,
38,
2521,
448 U.S.
100 S.Ct.
it
constitutionally prohibited
to conclude that states were
from
venirepersons
might
removing
who
hesitate to return a verdict
jury hearing
guilt phase
of death from the
of a bifurcated
trial;
question open
left this
Court
for future defendants to
attempt
prove that
juries
such
were less
neutral
than
with
517-18,
respect
guilt.
1774-75,
Id. at
521 n.
at
88 S.Ct.
1776 n.
Eighteen years bring a defendant did to the Court extensive showing evidence a full record
90 class of conviction, punishment [Lockhart v. McCree, on more serious L.Ed.2d death-qualified potential the State 137, [37] are 155, charges jurors juries permitted 161 *249 gave supra, (Marshall, than less are itself an unconstitutional — juries prone substantially U.S. serve____ J., on which unalterable than dissenting).] at —, —, more [B]y systematically population likely 106 advantage to convict or to S.Ct. opponents large 1758, 1770, at his trial. excluding to vote convict 1775, Inexplicably, majority rejected the Lockhart argu defendant’s ment: “it is hard for logic us to understand the of argu the ment given jury that a unconstitutionally partial is when it results from process, yet impartial a State-ordained when exact ly at-, the same results from mere chance.” Id. 106 1767, S.Ct. at 90 pointed out, L.Ed.2d at 151. As the dissent it just is this kind of “logic”—rejecting as unconstitutional a process selecting jurors process that when creates bias— “which day Witherspoon, carried the and which never has repudiated by at-, been 1775, this Court.” Id. 106 S. atCt. 90 (Marshall, J., 161 dissenting). L.Ed.2d at
Extensive social science research death-quali- indicates that jurors—i.e., jurors fied not in groups who are the two described in the quote Witherspoon—are earlier from more to believe that a failure defendant’s is indicative of likely his testify guilt, more to the hostile more of defense defense, mistrustful attor- insanity convictions____ danger and less concerned
neys, about the erroneous [They jurors aware of an 37"[P]rospective accused's constitutional uncommonly — rights,” Lockhart McCree, v. U.S. S.Ct. —, —, 106 L.Ed.2d 90 (1986) (Marshall, dissenting). J., 155
481 greater charges. have readiness to convict to convict a] on more serious And the of death focuses attention on the finally very process qualification—which begun—has death the trial before has been found to the penalty predispose jurors guilty. that survive to believe it defendant is [Lockhart - at 106 McCree, U.S. S.Ct. at at 157 supra, -, L.Ed.2d (Marshall, (citation dissenting) omitted).] J., death-qualification The evidence that process is a that creates partiality juries produces quite convincing. it has been strength sociological] chief The evidence lies in essential [the unanimity using subjects methodologies____ of the results diverse and varied Where investigations,
studies have identified corrected flaws in prior apparent work results have corroborated the conclusions drawn subsequent only efforts. earlier [********] true on The of death of a trial even impact fairness qualification likely devastating more than studies show to the use of chal- [due peremptory lenges judicial and lax application Witherspoon standards.] [Lockhart, — at -, -, U.S. 90 L.Ed.2d 1773-74, (Marshall, dissenting).] J., social science research has consistently found propo- punitive of the death are more
nents
than opponents of
Wilson,
penalty.
the death
in Capital
“Belief
Punishment and
1964);
Jury
(unpublished, University
Performance”
of Texas
Jurow,
‘Death-Qualified’ Jury
“New
on the
Data
Effects
on
Process”,
Harv.L.Rev. (1971);
Determination
Guilt
Ellsworth,
Fitzgerald and
“Due Process vs. Crime Control:
Death-Qualification
Attitudes”,
8 Law Hum.Behav.
Jury
(1984). “Death-qualified respondents
punitive
more
than
were
*250
likely
respondents—less
mercy,
excludable
to consider
more
crime,
punishment
likely
reducing
favor harsh
as a means
laws,
likely
and more
in the strict
believe
enforcement
all
no
dra-
consequences.
matter what the
These differences are
Grigsby
social
38The
science research is discussed and summarized in
v.
(8th
(E.D.Ark.1983),
569
Death-qualification effects, process as a voir dire has own its creating partiality among jurors, the even aside from the exclu- sion of veniremen. focusing begins on the before the trial By penalty actually key partici- judge, convey the defense counsel pants, prosecutor impression guilty, believe the defendant is that the “real” issue that all is the they and that appropriate defendant deserves the death penalty, really penalty. being cajole The forced to lead and a attorney spectacle defense juror who has
prospective adamant to the death expressed opposition being jury striking: order to him from off is “Mr. prevent “witherspooned” imposing don’t know that some A, under set of could you facts consider you enough death if the evidence is bad would be penalty? Certainly able you [Grigsby, considering imposing follow the law by supra, death?” F.Supp. at 1303 & n. 8.] majority The follows Lockhart because it finds itself in Supreme essential accord with the Court’s resolution of this at issue. Ante majority 248-254. The does not construe the Jersey New as an independent protection Constitution source disagree in this majority area. Because I with the on its Constitution, interpretation of the State I must dissent on this issue. part decision Lockhart was based in on that Court’s
analysis
purposes
that at least for the
of the federal constitu
tion,
unitary jury—having
Arkansas’ interest in a
one jury hear
phases
capital trial—outweighs
both
the defendant’s inter
being
by
jury
est
tried
has
been made less
—
impartial
death-qualified. Lockhart,
by being
supra,
U.S.
-,
1768-69,
We have exhibited exceptional sensitivity concern and to the subtle but of jury Simon, real evils bias. State v. supra, 79 N.J. rejected procedure we jury which a was premature into a “forced guilt consideration criminal prepared.” which it was inadequately at 201. jury Id. The was required special interrogatories to answer which had a “sublim- inal suggestiveness” and created “conscious or subconscious feelings guilt.” as death-qualification Id. The [defendant’s] process prospective has an jurors effect on as serious as obvious by special interrogatories. effect created “The death-qualification process traps participants into the neces- sity of communicating jury”: false cues to the cues that the prosecutor, judge, attorney and even the defense believe guilty, the defendant is only real issue is what the Grigsby, should be. supra, F.Supp. See 1303. at right by impartial trial jury always highly an has been our by valued state constitution. In this State, Constitution of 1776 that “the inestimable expressly provided right jury of trial shall remain by confirmed, as a law of this part colony, (1776), Const. right forever,” N.J.
without Art. XXII. The “an repeal, jury guaranteed ... all criminal impartial prosecutions” was similarly by (1844), Constitution, N.J. Const. Art. constitution I, II7-8, present right remain inviolate.” N.J. reaffirms that “the to trial shall course, by Ingenito, (1947), Const. Art. I, N.J. H9. at [State supra, 210.] right We have held that the under our state constitution to trial by impartial jury grants protections an broader than those granted parallel Gilmore, right. federal See State v. 524-29, 103 N.J. 543-44. *252 process imposing
The of a death sentence stages. has three jury The must determine that the guilty defendant was murder, jury the must determine whether the murder the defendant committed was a kind for penalty which the death imposed, can jury be and the must decide particu- whether this lar given defendant should penalty. be the death supra at See (a only the third decision 379-382, When not 386-391. guided discretion), decision of but (in also the first two decisions theory, open jury discretion) matters not to are by decided a death-qualified jury—a jury—a biased great injustice is done to the defendant. question, ultimately, is whether putative the state’s in “neutrality”
interest on the penalty may issue of be vindicat- expense ed at the of the defendant’s interest a fair trial if may both interests by using be accommodated proce- different dures. If protective different and more procedures could be serving guarantee devised right to defendant’s to be by tried a then, impartial jury fair and as a matter of fundamental fair- capital ness in punishment prosecution, a the enjoined State is protective to use procedures. such agree
I with concurring Justice O’Hern in his opinion, Ante 334-341, that the inconvenience entailed in providing for death-qualified a non jury—one that is impartial—in fair and guilt the trial of high price is not too a pay to vindicate defendant’s constitutional interests. question There can no the completely separate use of juries would solve the problem guilt because would be by normally determined composed jury penalty but would be by determined a death- qualified jury. A prohibition of death-qualifying jury the guilt phase capital impose trials would relatively insub- stantial burdens on the State. Grigsby, See F.Supp. at 1319: If such a bifurcated were would it mean system established, every sought
case juries in which the State the death two would penalty separate have to be The answer impaneled? is, no. To obviously, require impanel- jury, guilt jury ment of the second would have to end with the phase the defendant, conviction of in accordance with the statutory requirements, (not e.g., degree murder a conviction on a lesser included first offense, murder); reject it would have to claim; the State any insanity finally, would have continue seek death and to insist its upon jury____ consideration trials them- fully death-qualified [And] capital percentage selves a miniscule of all criminal trials. comprise procedure—death Another qualifying guilt after phase replacing non-death-qualified jurors with alternate jurors—would problem. also solve the approach quite This plausible, since N.J.S.A. 2A:74-2 authorizes impaneling required more than jurors. number of *253 using separate juries using Either two jurors alternate is protective more of right the defendant’s an impartial jury of community system. the than the Using current ju- alternate is costly using separate juries rors less than two but the actual cost dollars and Looking hours is unknown. the at factors cost, however, suggests which influence that the costs are minimal. conclude, therefore,
I system that the current violates State guarantees constitutional fair impartial jury of a as a matter of fundamental fairness.
D. sum, In deprived rights defendant was of his constitutional by properly juries. indictment and trial constituted source list, grand juries drawn, from the petit which both were substantially underrepresentative was of blacks and resulted in Moreover, non-representative juries. underrepresentation this by refusing was exacerbated the trial court’s error defend- request prospective jurors to ask questions ant’s directed to- possible death-qualified jury ward racial The use of bias. a error, guilt-phase the of the trial wаs also reversible as it deprived right defendant his under state of the constitution to by impartial trial jury. an
IV. particularly There several were serious errors that affected of guilt-phase the fairness the trial or penalty-phase trial or prior plea both. One involves the a use of non as an vult aggravating prosecutorial factor. There also was misconduct in the of inappropriately aggressive form cross-examination and improper projection commentary. Further, of testimonial general prosecutor during coupled comments summation with explanation jurv the trial court’s to the mitigating question sympathy factors and mislead served to my jury. opinion these matters constitute additional grounds for reversal.
A. Defendant raises the whether issue defendant's non vult plea to aggravating a 1966 murder indictment is an factor—a prior purposes conviction of murder—for 2C:11- N.J.S.A. 3(c)(4)(a). poses questions: This two the first whether is plea purposes non is a subsequent vult conviction of a prosecution; question, assuming plea criminal the second conviction, a is whether it is conviction of murder.
Under
plea
the law it stood in
vult
non
was to
indictment,
charged
which
murder generally. N.J.S.A.
(repealed 1979).
Williams,
2A:113-3
State v.
See
N.J.
*254
(1963);
580,
Walker,
(1960).
479
State
33
v.
N.J.
588
New
Jersey apparently used the same short form murder indictment
1979,
from
encompassed
1874 to
which
the
indictment
crime of
manslaughter
degree
degree
as well as first
mur-
second
Zelichowski,
(1968),
der.
52
See State v.
N.J.
382
State v.
Sullivan,
(1964).
N.J.
though manslaugh-
43
241-42
Even
from,
murder,
degree of,
ter was an offense
distinct
a
it
was
the
nevertheless
subsumed in
short form murder indict-
(1956).
Brown,
ment.
State
This
See
v.
At the practice, outset the non judges accepting vult pleas such required to short-form murder indictments were to “proceed, witnesses, by examination degree the determine crime, give accordingly.” sentence v. Sulli State van, supra, (describing requirements N.J. at 243 of Rev. 145). p. degree-of-guilt hearing Stat. 1874 was § necessary judge if degree because the found the crime first was murder, impose he she could penalty. the death Legislature amended the murder statute so that defendants pleading death, only vult could impris non not be sentenced to (the first years penalties for or a term of 30 oned for life murder, degree respectively). (precur second See L. c. 2A:113-3) 1979). charge sor of (repealed This tended N.J.S.A. any relating inquiry degree obviate factual to the of murder likely by since the sentence would not be affected such a By accepting plea, gener determination. a non vult the court ally degree did not decide factual issue of defendant’s guilt, for that issue was not before the court. State v. 479; Williams, supra, Walker, supra, at State v. N.J. Further, statutory change appears at N.J. 588-89. have committed, created notion that the crimes and therefore the convictions, murder; presumed degree were to be second crimes, penalties imposed Legislature matched those though manslaughter. charge even indictment continued to 382; Zelichowski, supra, See State State v. N.J. Sullivan, N.J. at 242-43.
Degree
guilt
of
was never an
imposition
issue because
of the
death
depend
did not
prior
on the use of
murder
convictions as
aggravating
Indeed,
an
factor.
the State was
prohibited from introducing
prior
evidence of defendant’s
con
purpose
victions for the
punishment
of
at a
trial. See
Forcella, supra,
State v.
illogical and unfair to assume that
the “conviction” is for
Consequently,
murder.
in the
legislative
absence of a clear
expression
prior
that a
plea
could,
non vult
to murder
under
appropriate circumstances, be
prior
considered a
conviction of
murder, and
aggravating
therefore an
factor under N.J.S.A.
2C:ll-3(c)(4)(a), this Court must conclude that it was not intend
ed to serve
purpose.
this
It was therefore reversible error to
permitted
have
to consider it as an aggravating factor.
addition,
it
improper
would be
to allow the use of such a
prior
plea
adequate
non vult
in the absence of an
factual
demonstrating
record
underlying
clearly
that the
crime
consti-
tuted murder. Other
degree-of-guilt
states have resolved this
through
problem
preliminary hearings.
system,
Under such a
plea
general
before
non vult to
murder could
used
as
factor,
aggravating
cases,
Jersey capital
an
current New
trial courts would have to examine the record
plea
leading
prior
degree
guilt,
to the
conviction to determine
*256
some
there is
evidence that
the crime
where
committed
least
manslaughter.39
was
jury
if
facts from which a reasonable
could
Even
there were
murder,
requisite
defendant had the
mental state for
infer that
regarded
should not be
as a murder conviction if
the convictions
inescapable
jury
inference
or if a
would not be
was
required to draw such an inference.
Henderson v.
legally
See
17,
645-46 n.
2258 n.
Morgan, 426
U.S.
(1976).
n. 17
The record in this case
49 L.Ed.2d
equally possible for
strongly suggests that
it is
a reasonable
manslaughter
find
from the same circumstances.
Further,
these proceedings occurred in 1965. Voluntary man-
slaughter at that time
slayings
included
committed in a trans-
port
passion
by
induced
adequate
an
provocation (provided
prior
plea
39In this case the record of the
conviction or non-vult
contains
evidence that would be insufficient to establish murder. The factual basis for
plea
following exchange
plea hearing:
consisted of the
at the 1966
killing
THE COURT: How was this
done?
way
happened?
MR. RAMSEUR: You mean the
it
gun
THE COURT: Yes. Knife or
or what?
gun.
MR. RAMSEUR: It was a
gun?
THE COURT: With a
MR. RAMSEUR: Yes.
words,
death;
you
your
causing
THE COURT: In other
shot
wife
her
right?
MR. RAMSEUR: Correct.
THE COURT: And what were the circumstances?
gave
money
my
MR. RAMSEUR: I
her
for
kids Christmas which she had
friend,
given
him,
boy
telling
demanding
to her
me she haven't saw
go
going,
her to
and find him. That is when she said she was not
and she
away,
started to run
and I shot her.
sentencing hearing, Judge
No other facts were adduced. At the
Glickenhaus
presentence investigation report:
referred to the facts contained within the
previous
Against
THE COURT: ... This man had no
violations of the law.
that, however,
killing,
shooting
I considered the circumstances of the
a
prone
ground,
the deceased when she was
to the
with a revolver which he
recently acquired.
had
Further,
conviction,
sentencing
prior
under the
defendant’s counsel al-
leged
continuously
neglected
that defendant’s wife had been
unfaithful and
their children and that defendant had been attacked with a knife
of her
one
boyfriends. Defendant also indicated that he never intended to kill his wife.
killing
passage
occurred before the
of time sufficient for an
off”).
State v.
ordinary person in like
“cool
circumstances to
Guido,
(1963);
40 N.J.
N.J.S.A. 2A:113-5
(repealed).
degree
The
manslaugh-
difference between second
murder and
Brown,
was the element malice. State v.
ter
22 N.J.
Guido,
example,
405. In
held
this Court
that a course of ill
treatment,
unfaithfulness,
including continuous
could induce
response in
person
ordinary
homicidal
firmness if the
reasonably
it
accused
believed that would
continue.
Court
*257
permitted
finding
provocation
a
of
intentionally
where a wife
emptied
gun
sleeping
a
into her
who
husband
had abused her
baby. Guido,
and
kill her
their
threatened to
40
195-96,
N.J. prior
211. There
inwas
the
offense in the
present
provocation,
might
case evidence of
brought
which
have
case within the Guido
ruling
the
gone
had the defendant
Further,
said,
trial.
“I
defendant
never
this is hap-
intended
Thus,
pen.”
the
of
plea
record
defendant’s
and sentence in the
1965
convincingly
clearly
conviction does not
establish that
requisite
he
degree
had the
intent for first or second
murder.40
Corbitt,
(1977), aff’d,
Jersey,
40ThisCourt
State v.
74
379
N.J.
Corbitt New
492,
212,
(1978)
open
439
99
possibility
U.S.
S.Ct.
441 cases, cases, In criminal particularly any death doubt should ambiguity favor of the accused. See resolved State v. 630, Biegenwald, N.J. (1984); Maguire, State v. N.J. (1980). 514 n. vult non plea, Defendant’s therefore, should not have prior been considered a conviction of 2C:ll-3c(4)(a). under N.J.S.A. murder perverse It is to use a procedural twenty years ago device available to enable defend- possible ants to avoid a death sentence as vehicle imposing one now. erroneously this case determined that defendant’s
non
vult
plea
aggravating
was an
factor. The death sentence
if,
here,
jury improperly
should be vacated
found a
non-statutory aggravating
Supreme
factor. While the
Court in
Stephens, supra,
Zant v.
862, 103
U.S.
L.Ed.
2d
uphold
imposed
Georgia
did
a death sentence
under
law
factors,
which
on
aggravating
was based
three
of which
one
invalid,
holding
was found to be
apply
does not
due to
Georgia
Jersey
differences in
New
law. Under
New
undoubtedly already
was
to the
sensitive
considerations which were to
penalties
lead to the later broad
of death
invalidation
in Furman v.
Georgia,
(1972).
*258
U.S.
92 S.Ct.
L.Ed.2d
408
346
Wither
Cf.
Illinois,
510,
1770,
spoon
v.
88
[Id.
391 U.S.
S.Ct.
Jersey statute the jury expressly required to together add and then aggravating balance mitigating and factors. See 2C:ll-3c(3). N.J.S.A. Jersey’s statute, therefore, Under New solely factors are not a threshold screening device to determine whether death-eligible. defendant is ag- Rather the gravating factors are also a device determine whether the defendant is death-selected. A defendant becomes death-select- ed in this State when he becomes death-eligible; both determi- nations are made simultaneously. sense, a very real there- fore, the offense is defined punishment when the is fixed. introducing the effect of an
This difference means
Jersey
differ from the effect of
invalid factor
New
can
Georgia.
Jersey’s
introducing
invalid
Under New
an
factor
statute,
inescapable possibility
is the
that intro
there
real
have an “ascertainable and
duction of an invalid factor would
pro
jury by infecting
weighing
on
impact”
‘dramatic’
903,
462
Stephens, supra,
v.
at
103 S. Ct.
cess. See Zant
U.S.
2756,
Indeed,
penalty
77
at
states whose death
L.Ed.2d
267.
aggrаvating
require
mitigating
to balance
statutes
impose
penalty,41
the death
deciding
factors when
whether to
on
valid
usually hold that a death
which is based
both
See,
aggravating
e.g.,
factors
be set aside.
and invalid
must
686,
State,
9,
(1981);
v.
274 Ark.
621 S. W.2d
Williams
Irwin,
93,
(1981);
State v.
N.C.
S.E.2d
448-49
Moore,
(Tenn.1981);
State v.
Hopkinson
S. W.2d
351-52
State,
1, 171-72 (Wyo.1981);
v.
632 P.2d
n.
Barclay
cf.
Florida,
(1983)
U.S.
Despite its conclusion that a non vult plea can be introduced prior purposes c(4)(a), as conviction for the of Section majority would allow defendants present evidence to “cast some doubt about reliability proof conviction’s defendant committed murder.” Ante at 278. That the majori- ty procedures needed to resort to elaborate and a rebuttable presumption regarding non vult see ante pleas, 277-279, only serves to reinforce the conclusion that the non vult plea “prior should not be treated as a aggravating conviction” factor. prior statutes,
Under case law and the relevant it is clear that the non vult plea cannot be considered as a conviction of murder. non vult prior Thus to consider the plea as an aggravating improper factor was purposes capital sen- tencing. capital Given the structure of the penal- murder-death statute, ty improper the use of an factor must be considered reversible error.
B. My majority’s prosecutori- assessment differs from the al misconduct that occurred in the my course of this trial. opinion particular this egregious misconduct instances was highly prejudicial. As a result defendant was denied a fair trial, mandating reversal of his conviction. respect issue, important
With to this it is to understand the scope appellate and focus of review of murder-death penalty prosecutions. especially scrupulous That review is exacting. governing appellate The basic standard review of in State expressed claimed errors in criminal trials remains that Macon, (1971): N.J. may “No matter how a test stated, question whether an error is reason for reversal depends finally upon degree possibility some that it led to an unjust verdict.” *260 disregard has Court demonstrated a reluctance to errors jury’s impartial
that the upon guilt affect deliberations the aof Simon, supra, In State v. at N.J. criminal defendant. this Court stated: impacting directly upon poor Errors ... areas sensitive of a criminal trial are philosophy. for under candidates rehabilitation the harmless error The harmful readily empirical effects of errors of this character cannot be measured the objective bearing upon guilt. the assessment of evidence the defendant’s reason, only great For this the rule of harmless error should be summoned with dealing procedural safeguards
caution in with the breach of fundamental “designed (citations omitted). assure to a fair trial.” Czachor, in State v. 82 N.J. position The Court reiterated this (1980). There, repeated the issue was whether the use Allen charge constituted reversible In refusing error. apply the harmless error doctrine this Court stated: recognized impact substantially We directly have that which errors on procedural safeguards, particularly upon process fundamental the sensitive rehabilitation____ deliberations, jury are not amenable harmless error A defendant confronted with this kind of error trial need not demonstrate actual
prejudice reacquire right in order to his to a fair trial. [Id. 404.] extremely This Court was reluctant to use the harmless error doctrine in its Jersey’s treatment New pen- former death Mount, State 30 N.J. alty statute. guilty
defendant was found degree of murder the first was appeal, sentenced to On death. the defendant contended the voir dire examination that during court’s comments unfairly prejudiced his opportunity jury for a recommendation of life imprisonment automatically which would have voided his death sentence. The Court stated: enough goes through Especially “It is not that a trial forms of law. where requisite judge guide life is at it is jury stake that the trial should so jurors may equipped to determine whether death should be the society protect surely for Of conduct. course must itself. But it is not self-protection society to take life the most without careful observance of its against capital punishment.” (quoting own standards the misuse of at 206 [Id. States, (1946) Fisher v. United 328 U.S. L.Ed. J., (Frankfurter, dissenting)).] recognized The Court objection defendant voiced no mistrial, trial court’s remarks and made no motion for but held that justice a life is at this court does not in the interests of stake, hesitate [w]here
to invoke the error rule ... and to reverse when the trial errors were plain impregnated having rights with the likelihood of harmed the substantial defendant, 30 N.J. at [Id. 213.] opportunity The Court concluded that the defendant’s for a imprisonment adversely recommendation of life had been af- fected, judgment and reversed the of conviction. *261 that, fairness,
I am satisfied as a matter of fundamental in a capital penalty searching murder-death case there must be a judicial appellate and strict standard of review. The court must strongly persuaded firmly convinced that there was no possibility jury real that an error influenced the to return a murder and the death It is verdict sentence. this prosecutor’s standard undér which we must assess the conduct in this case. prosecutor’s in special role is a one that his interest is not Berger is done. See winning seeing in justice a case but States, 78, 88, 629, 633,
v. United U.S. S.Ct. 295 55 79 L.Ed.2d (1974); Spano, v. 1314, (1935); 566, State N.J. 1321 64 568-69 Farrell, 99, (1972). v. 61 N.J. 104-05 Thus is as State “[i]t duty improper methods calculated to much his to refrain from wrongful every legitimate it use produce a conviction as is to States, Berger v. United bring just means to about a one.” see 88, 633, 1321; supra, 295 U.S. at S.Ct. at 55 79 at L.Ed.2d Farrell, 568-69; Spano, supra, v. State v. State N.J. 64 at supra, N.J. prosecutor’s 61 at 104-05. When the conduct is so trial, then egregious deprive as to the defendant of a fair rights violated. defendant’s constitutional have been specific general or terms prosecutor may A either is express jury personal belief that a defendant to the his Farrell, v. 103; supra, 61 N.J. State at See State v. guilty. 300, (1960). may Hipplewith, 33 An of belief N.J. 311 assertion prosecutor that his or her error if the insinuates be reversible special training or is based opinion upon expertise based Farrell, supra, v. N.J. 61 evidence. See State on facts not 446 103;
at
Hipplemth,
State v.
probably testimony. Note, (1954). inadmissible Colum.L.Rev. [Id. at 311-12.] The same considerations prosecu- dictate that in summation a tor, latitude, while “stay” otherwise entitled to wide must within the evidence. See State v. Maybery, N.J.
(1968); Hill, (1966). State v. 47 N.J. case, primary this defendant’s expert defense consisted of testimony relating capacity.”42 “diminished The evidential support Lewis, mostly by this defense was furnished Dr. who testified that defendant from psychomotor suffered sei- capacity” respect 42"Diminished constituted defense defendant’s main with guilt, being phase as well as relevant in the of the trial. In his *262 phase attorney emphasized, mitigat- summation in the the defense as a factor, ing testimony that Mr. Ramseur disturbed was a man and that he pointed testimony expert was not whole. He also to the that Mr. Ramseur was mind, "literally losing importantly, losing portion but his more he’s which judgment ability controls or ... controlled his and to control his own behav- prosecutor respond specifically ior.” The in his summation did not to this approach. capacity” implicated flight. "Diminished also was in issue of Defense objected charge flight. gave charge flight counsel to a on The trial court a on psychiatrists flight because the defendant’s own testified would have a bearing suffering psychomotor on whether was a the defendant from seizure at murder, i.e., suffering capacity. the time of the was from diminished How- ever, Rather, explained jury. these reasons were or communicated to the "flight" only guilt." the instruction focused on evidence "consciousness of Hence, contends, charge defendant authorized consideration of a non-statu- factor, ie., tory aggravating guilt, prevented consciousness of which fully considering problems mitigation. from the defendant’s mental The guilt” respect trial court’s failure to make clear that with "consciousness flight only from the on scene was relevant as it bore the evidence of the mitigating concerning any culpability, independent factors mental not as factor, aggravating arguably was harmful error. prosecutor The zures. both ridiculed Dr. brought Lewis and his personal opinion to against bear that of the witness. The prosecutor which, made comments fashion, in non-evidentiary a impermissibly demeaned and denigrated the witness and projected personal his own opinions views and with testimonial effect. On numerous prosecutor that, occasions the intimated according to personal his own expertise, belief and defendant had “hoodwinked” Dr. Lewis. The first such incident occurred when Dr. Lewis discussed defendant’s conduct as a child. The that, mother, witness testified according to defendant’s defend- ant’s father game defendant, was shot in a card who was old, years then 11 took his father’s bloodstained clothes “[a]nd kept them his room and sat with them and isolated himself prosecutor with them.” The then testified the form of a question: something You know about how who commits a crime behaves when person giving talked about Mr. Ramseur a statement. Don’t know that the
you you clothing at the scene of a homicide police would secure the them for keep long evidence and hold them for a of time and wouldn’t turn them period they over to an kid? Do believe that 11-year-old you really happened? prosecutor clearly personal offfered his own belief in guilt expert testimony, defendant’s to neutralize Dr. Lewis’ further, expertise.43 he insinuated that his belief was on based 43This was at least two other incidents. At one compounded by point following discussion occurred: Q Do think more whether or not he would you you’re any qualified say knowingly
be in a
make
or excuse than
else
position
up
story
anybody
in this courtroom?
Yes,
A
so after
I would
many
certainly
hope
years.
Q How about more than me?
A Yes.
anything
background
Q Do
know
about
with how
cases of
you
my
many
homicides I have handled?
career?
my
A However—
*263
Q How
to?
murderers I’ve
many
spoken
neurologist
Yes,
A
but
are not a
are not a
you
you
you
physician
do not know what to
in these
areas to the best of
look for
my
particular
knowledge,
that is
area of
your
expertise.
Supreme
has vacated a death sentence where the
Court
prosecuting attorney injected
his argument
into
at summation
his own account of
prosecutor
persuade
his record as a
jury
he
did not ask for the death
where it was not
Westbrook,
deserved. See
State v.
92 S.
U.S.
Ct.
(1978),
vacating
L.Ed.2d 761
279 N.C.
As did this discussion: Doctor, using just Q anybody common sense like in this courtroom would you, any (indicating), any like of those kinds back there like of these men here, (indicating), may they these women whatever in walks of life in courtroom, your this use common sense. logical, explanation it Isn’t the most most reasonable that this man after scene, having fleeing just somebody? done that act was after he killed logical. you why expert A my It is not That’s an ask witness. It is not mind— Q type logic anybody You have a different than has. You have a your logic any different kind of common sense. Is common sense and anybody's better than this courtroom? My logic A is— your logic Q your opinion any —is and common sense in better than courtroom, anybody back, including young boys in this those Doctor, appear years who to be fourteen fifteen old? this, regard yes. A In Q you your logic regard Do think common sense and to this is better Jersey maybe than the Prosecutor in the State of New has who tried two investigated you hundred criminal cases and a thousand? Do it think person? is better than this unnamed *264 prosecutor clearly prose- That tal what the did.44 conduct Farrell, supra, 103; see v. misconduct, State at N.J. cutorial 311, and, Hipplewith, supra, N.J. State my estima- tion, prejudicial. highly was
C. charge also raises the claim that the trial court’s Defendant jury “sympathy” that the consider the issue of without penalty phase, reversible error. At the constituted close requested jury to defendant that the be instructed consider mercy” “compassion sympathetic “fairness and and and under- standing” mitigating rejected factors.45 trial court the The points questioning prosecutor’s also about 44Defense counsel to the extensive get Dr. had Dr. Lewis’ failure to defendant's old medical records. Lewis she believed the more a behavorial and medical testified that that intensive has, history opinion the She then that doctor better her will be. stated unavailable, explained defense defendant’s old medical records were and how investigators had and some of counsel and tried to locate this information that family. Apparently, the were it had been obtained from records defendant's myriad prosecutor questions unavailable because of a The directed fire. get personally apart she had records from at Dr. Lewis about what done to investigators Eventually, counsel what defense counsel and had done. defense complained prosecutorial The the court ruled and witness about harassment. prosecutor point. questions proper had made his Never- were but theless, question concerning prosecutor her later Dr. Lewis continued personal got efforts to records. own opinion prosecutor that Dr. Lewis’ Defense contends that the knew counsel legwork simply do that this was not did not her own and invalid because she questioning questioning cheap was “a shot at the witness." line was abusive, ridiculing unnecessary made and comments rude and as were other witness, likely prosecutor they very have caused an and could reject. juror average juror reject testimony would not otherwise which requested jurors be instructed as follows: 45Defendant that the your duty punishment gentlemen, what Ladies it to determine is now Ramseur____ upon imposed now decide whether will You must Mr. mercy require extenuating in fairness and circumstances exist which parole possibility prison for 30 with no Mr. Ramseur be confined to aggravating years, proven circumstances has or whether Prosecutor you which believe Mr. Ramseur’s execution. warrant request and instructed the that it “should decide the case bias, on any and, the evidence prejudice sympathy without course, conjecture” “cool, without reference to calm with dispassionate added). judgment.” (Emphasis The trial *265 process court explained by also the jury weigh which the was to aggravating against factors, the mitigating including the an jury might mitigating instruction that the consider as evidence “any other factor which is relevant to the defendant’s character or record or to the circumstances of the offense.” Neverthe less, contends, defendant charge effectively the court’s re sympathy moved considerations compassion and the from further, jury’s and, prevented deliberations jury prop the from erly assessing the mitigating majori other circumstances. The ty rejects position. this Supreme It contends the that Court’s — Brown, decision in U.S.-, 837, v. 107 S.Ct. California (1987), 93 supports L.Ed. 2d 934 its determination. genuine
There can
no
dispute
determining
be
in
whether
or
impose
sentence,
not to
the
among
many
death
factors
the jury may rationally take into
is sympathy
consideration
or
compassion for the defendant.
long
This has
been acknowl-
edged by
Supreme Court,
e.g.,
States,
Winston v. United
303, 312-13,
212, 215,
172
(1899).
U.S.
19 S.Ct.
that have mitigation at the jurors could consider which the Ohio, supra, v. 438 U.S. phase trials. Lockett Oklahoma, 973; Eddings v. 57 L.Ed.2d S.Ct. 869, 71 1. L.Ed.2d 455 U.S. S.Ct. Eighth ... not be that the sentencer and Fourteenth Amendments require [The] considering mitigating of a defendant’s factor, as a aspect from any
precluded
circumstances of the offense
or record and
character
any
for a sentence of less than death.
[Lockett
defendant
as a basis
proffers
(footnote
at 990
57 L.Ed.2d
438 U.S. at
Ohio, supra,
*266
omitted).]
Indeed,
2C:ll-3(c)(5)(h) requires
jury
consider
that
N.J.S.A.
relevant to the defendant’s
mitigation “any factor which is
in
of the offense.”
to the circumstances
character or record or
in
interpretation
provision is accorded a liberal
statutory
This
v.
the defendant. State
complete fairness to
order to assure
(1984).
Davis,
Here, only refused to instruct trial court not compassionate sympathetic they incorporate could circumstance, he mitigating analysis of the feelings into their impermissi an Clearly this constitutes them to do so. forbade jury consider right to have curtailing of the defendant’s ble Ban People v. mitigating circumstance. every possible (1970),the 408, Cal.Rptr. 184 dhauer, 609, 83 1 463 P.2d Cal.3d murder, evidence of presented defendant, charged with alcoholism childhood, impairment and mental an abused jury that charged the The trial court mitigation penalty. sentiment, by mere governed you to be law forbids “[t]he pub- opinion or public passion, prejudice, sympathy, conjecture, 452 416, feeling.”
lie
evidence of his childhood also have felt as “the law of compelled disregard though the case” to such even to was sympathy consequence a death otherwise would have impose penalty deemed unwarranted. they [/A] Further, the court ruled that the additional instruction to the jurors they “entirely according were free to act your judgment, own conscience and absolute discretion” was not sufficient to overcome the effect of the court’s direction to ignore sympathy Id.; Stanworth, and sentiment. People see v. 820, 889, 71 Cal.Rptr. (1969); Cal. 2d 457 People P.2d 80 49 v. Polk, 443, 451, 641, 63 Cal.2d Cal.Rptr. (1965); 406 P.2d 47 1 Friend, People v. (1957); 306 Cal.2d P.2d 463 State v. Crawford, (1963); 260 N.C. S.E.2d State v. Connor, (1956). 244 N.C. S.E.2d Supreme Georgia Court of came to the same conclusion Legare State, (1983). Ga. S.E.2d 351 While ground, case was reversed on purposes another retrial the court considered the defendant’s challenge to a charge jurors that instructed the a render verdict sympathy prejudice.” “unaffected either Id. at 354. Ohio, Citing Georgia Supreme Lockett v. Court aspect noted that no background a defendant’s or character can jury’s be excluded from the consideration. The court found that the judge’s charge trial properly instructed the “to mitigation consider in all circumstances which fairness and mercy offer penalty____” for not imposing basis the death Nevertheless, Id. the court ruled: *267 jury charged But the was also not to base their verdict on for the sympathy mitigation might defendant. Since the evidence in well evoke we sympathy, charges charge find these in irreconcilable conflict. Because the complained might jury well confuse their the and limit considera- constitutionally required mitigation,
tion of evidence in we it. hereby disapprove [/A] Supreme The Washington Court of the State also found error the jury when trial court instructed the “not to be moved coming by prejudice” in to a verdict. sympathy influenced by or 1268, 1271 Quinlivan, (1972). v. Wash.2d 499 P.2d State in “contrary implication this the instruc court that noted tions, appropriate jury’s in the considera sympathy is an factor id. issue”, at and found this penalty the 499 P.2d tion of requiring a charge to of several errors reversal. be one In understanding is in these views. own accord with Our a trial Conyers, v. N.J. we considered State play part your no in “[sjympathy that should court instruction Id. at Conceding 136. that such an admonition deliberations.” regard jury’s determination of appropriate with to the would be innocence, jury might have argued defendant that the guilt or penalty por- this to the applied admonition misunderstood and “there is dissent its We that no tion of deliberations. stated jury told the that a should not be to exclude proposition from in the deciding punishment whether sympathy for the accused Id. at 137. shall be death.” compas- quarrel proposition that
There should no with the proper the are considerations sympathy sion and for defendant these assessing penalty. The exclusion of jury in a case jury’s capital considerations from deliberations case, In this trial highly prejudicial. should be considered sympathy to exclude was delivered at court’s instruction phase, only have been understood close of the could applied penalty deliberations. by jurors to be to their Brown treating misguided The Court California Brown, charged judge In the trial determinative. sentiment, conjecture, swayed
they “must mere not be feeling” public opinion public passion, prejudice, sympathy, — Brown, at-, U.S. making penalty decision. 93 L.Ed.2d delivering opinion at 940. of the prin Court, Rehnquist the established reaffirmed Chief Justice any to introduce allowed ciples defendant must be his character or record regarding mitigating relevant evidence offense, and that consideration or the circumstances *268 jury the by constitutionally such evidence indispensible to the process imposing However, a death sentence. Id. he went on to state that since the given sentencer cannot be “unbridled determining death, discretion” who is be sentenced to an prohibiting instruction a jury considering from “extraneous factors,” i.e., sympathetic emotional response not rooted in the mitigating evidence during penalty introduced phase, would — constitutionally permissible. U.S. ---, be Id. at L.Ed.2d at 941. evaluating Brown, challenged the instruction the Chief jury
Justice concluded that because the was told “to avoid basing sympathy,” its decision on juror mere no reasonable would it ignore have understood as an admonition to emotional responses emanating mitigating from the presented. evidence — at-, Id. U.S. 107 S.Ct. at L.Ed.2d 940. The modify use the word “mere” to “sympathy” would have been understood to apply to extraneous factors divorced from the case, however, evidence. Id. In this given by instruction noted, the trial court significantly. differed As the trial court jurors they told the should decide the “on the bias, any prejudice (em evidence without or sympathy ...” added). phasis Because of “any” the use of the word conjunction specific with a evidence,” to “the reference instruction at reasonably issue here could be understood as excluding sympathy might even mitigat from the emanate ing testimony presented Thus, by the defense. even under ruling, constitutionally Brown this instruction is defective. Additionally, impression given by here, the trial court jury that the should by sympa- not moved considerations of thy, by was intensified the comments made several prosecutor in penalty-phase prosecutor his summation. The denigrated significance sympathy compassion.46 He
46The
in summation made these comments:
prosecutor
feelings
improper—
to believe that such
were
invited
*269
weakness,”
law,
“human frailty,”
“human
inconsistent with the
responsibilities.
grasped
of
and an abdication
Justice O’Connor
Brown,
point in
this identical
her concurrence in
California
supra.
sympathy”
She concluded that
the “mere
instructions
together
in
by
prosecutor
with remarks made
considered
mitigation
suggesting
jurors
ignore
that the
should
summation
may
impaired
background
about the defendant’s
have
evidence
proper
mitigating
Ac-
jury’s
consideration of the
factors.
cordingly, she recommended that on remand
California
of instruction
Supreme Court consider whether the combination
may
impermissible ambiguity in
and comments
have created an
jurors
responsibility to consider all
the minds of the
as to their
Id.
mitigating
evidence
the defendant.
introduced
—
(O’Connor,
at-,
U.S.
at
Who will counsel sympathetic very very a emotional and manner which the tries defense mine, gentlemen, get get your sympathy, and to tries to to to ladies will, you frailty is to let the human weakness if human in all of us and that reality yourself, gentle- facts and ... Ask ladies and emotions overcome men, really play your play a role in whether or not that on emotion should deliberations. ******** why you’re your at It’s emotional but take ahold of emotions and look say representing everybody out there. You're here to here. You’re here working, living, playing uphold people I will these out in the streets that it, juror. easy, do I don’t like I don’t want it but I will the laws as a It’s not sympathy or bias or it and I will deal with it not out emotion laws, prejudice consistent but I will render a decision consistent with the us, protect all of us. with the laws that are here to things enjoy, things we The most difficult we do in our life are not things enjoy easy things you It’s in life are the life. know that. The we decisions, you you anguish which lose the ones which over the difficult over, may They’re you may cry you sleep die over. which over and which responsibilities, abdicating once but once we start those the difficult ones gentlemen, getting giving up, emotional and we them ladies and start be, getting getting sympathetic; once we it shouldn’t emotional and where collapse. system going get of mind the start to into that frame (Emphasis supplied). Supreme Court in disingenuously suggests Brown jury’s “the on ... reliance extraneous emotional factors ... likely far more jury against would be to turn the —Id, at-, defendant than for him.” U.S. 107 S. Ct. at opinion). (majority However, 93 L.Ed.2d the decision really implies prohibitions against that the constitutional arbi trary imposition of penalty require the death elimination mercy, sympathy compassion from the deliberations of a might arbitrary because these sparing result of life. my opinion rights condemned defendant’s under both federal and State imply judicial Constitutions do not such neutrality, require extirpation nor impulses such humane capital sentencing proceedings. from presumed It jurors must conscientiously follow the *270 instructions; trial court’s jury here was admonished and to presumably sympathy compassion did eliminate and its from penalty phase prejudice deliberations. While under cir- these presumed, cumstances should be in this case the erroneous likely instructions are to actually have jury’s affected the deliberation. In this jurors case the first they announced that then, were following instructions, deadlocked and coercive equal aggravating found an number of mitigating factors. bring weighed these factors to it eventually to the ulti- It mate sentence of death. To jurors incorporate have allowed to feelings sympathy into might their deliberations well have altered the balance defendant’s favor.
D. firmly I am of the belief that reversible error occurred when permitted the trial court jury to aggravating consider as an factor, c(4)(a), under prior defendant’s plea. my non vult view, plea such a prior does not a constitute conviction of murder and in clearly this case does not convincingly demonstrate underlying that the crime constituted murder degree the first under the former criminal statute. Under applicable to murder- heightened standard of review prejudicial serious penalty prosecutions, there was also death who, through part prosecutor, of the exces- misconduct on cross-examination, improperly fostered and sively aggressive expert jury personal to the his own belief and view presented competent not key that a defense witness was credible given issues not to be opinion her on critical defense was prejudicial added weight by jury. prosecutor further summation, during penalty phase by insisting in influence trial, wrong jury give any for the to that it would be comments com- sympathy. to notions of These consideration specific jury instruction to the with the trial court’s bined only capacity sympathy considerations of had remove their jury very likely mislead the contributed to confuse and but several, penalty. seriously preju- imposition of the death These grounds of defendant’s errors furnish added for reversal dicial sentence. conviction and
V. court occurred when the trial prejudicial Irremediable error the death verdict for jury to return unanimous coerced death of defendant’s requires This error the vacation penalty. fully understands. Ante sentence, majority as the itself 312. The Court in capital also holds that a trial court where instructions, erroneously given supplemental coercive has case Czachor, supra, 82 N.J. to a State violation may not agree, the defendant expressed inability its that has *271 Id. sentencing proceeding. another subjected to be ruling is not majority’s However, the the basis 312-313. acknowledge constitu- the majority refuses to explained. The instead, reaches, positing, of the result it underpinnings tional agree I particular situation. limited to this apparently rule retrial, not, be may on ruling that defendant the Court’s with However, this result I believe sentenced to death. jeopardy and double principles of by constitutional mandated fairness. fundamental
458 penalty phase trial, resulting
When there is error in the
of a
sentence,
imposition
Supreme
in the
of the death
Court has
leaving
of this
while
sanctioned
vacation
sentence
See,
Oklahoma, supra,
e.g., Eddings
conviction intact.
v.
455
104,
1;
869,
Texas,
102
supra,
U.S.
S.Ct.
71 L.Ed.2d Adams v.
2521,
38,
581;
448
100 S.Ct.
65 L.Ed.2d
Roberts v.
U.S.
Louisi
633,
ana, supra,
1993,
637;
431
97
52
U.S.
S.Ct.
L.Ed.2d
Florida,
349,
v.
supra,
1197,
Gardner
430
97
U.S.
S.Ct.
51
L.Ed.2d 393. We have
thing. See,
on occasion done the same
Mount,
195;
e.g.,
White,
v.
State
30 N.J.
State v.
27 N.J.
(1958).
phase
158
A
penalty
retrial
has not been viewed
violating
jeopardy
double
because the defendant was not
previously acquitted of the death sentence nor on retrial would
subjected
he be
to a
imposed.
more serious
than earlier
However,
jeopardy
if,
double
does bar resentencing
in the
trial,
earlier
only
defendant was in fact sentenced
to life
imprisonment.
Bullington Missouri,
430,
See
v.
451
101
U.S.
1852,
(1981).
S.Ct.
(1979). may distinguished Bullington
While this case from on the ground explicitly that defendant was not sentenced life imprisonment, strong equally militating there are reasons against exposure penalty. a second the death When the trial jury’s rejected agree court announcement that it could not returning into and then coerced the a unanimous verdict deprived penalty, unfairly improperly for the death it very opportunity the jury defendant real to have had Moreover, fairly life return a sentence. we can infer from
459 circumstances that the was otherwise unable to find these sufficient evidence to return a unanimous verdict for sentence Consequently, exposure of the defendant to a second of death. would, penalty grounds, vio- death trial on state constitutional principles jeopardy late of double and fundamental fairness. Supreme Neither the United States Court nor this Court has present- expressly question ever decided or discussed the exact However, deciding us. whether to resentence ed before capital generally, murder defendants two fundamental constitu- rights implicated: prohibition against tional are double guarantee, as the related jeopardy process and the due well as principle of fundamental fairness. applies sentencing jeopardy
It is settled that double
as well
(18 Wall.) 163, 21
Lange,
conviction.
Ex Parte
85
See
U.S.
(1873).
noted,
Supreme
872
As
Court ruled Bull
L.Ed.
430,
1852,
Missouri, supra, 451
101
68
ington v.
U.S.
S.Ct.
270,
2d
that a
defendant who had earlier been
L.Ed.
not,
remand,
imprisonment
could
on
be resen
sentenced
life
sentencing
penalty.
the death
The Court held that a
tenced to
Thus,
is,
resen
hearing
jeopardy purposes,
for double
a trial.
tencing
jury’s
first sentence was tanta
was barred because
support
finding that the evidence was insufficient to
mount to a
acquitted
the death
sentence—defendant had been
the death
69,
States, supra, 437
at
penalty.
v. United
U.S.
See Sanabria
2181,
(a
acquittal
judgment
at 56
bars
98
57 L.Ed.2d
S. Ct.
trial.)
any aspect of a criminal
prosecution
further
on
courts,
arising
from the state
pre-Furman cases
guilt
frequently
convictions of
Supreme Court would
leave
trial error affected
standing
vacate the death
when
but
262,
Bishop, 398
90
sentencing alone.
Maxwell v.
U.S.
See
Holman,
(1970);
394
221
26 L.Ed.2d
Boulden
S.Ct.
(1969);
Witherspoon v.
L.Ed.2d
U.S.
S.Ct.
(1978).
Illinois,
20 L.Ed.2d
U.S.
resentencing or mod-
contemplate either
apparently
These cases
course,
Of
imprisonment.
to life
ification of the sentences
*273
penalty provisions
where
Court struck down entire death
laws,
state
federal
modification of the sentence to life was
permissible.
also
v. Georgia, supra,
example,
Furman
only
Court reversed the consolidated state court decisions
they
as
imposed
penalty.
being
insofar
the death
There
no
however,
remand,
other valid
on
the defendants’ sen
imprisonment.
tences were modified to life
See Sullivan v.
State,
731,
229
(1972);
Ga.
L.Ed.
v.
supra,
Woodson North
effect,
U.S.
We
principles
interaction between
jeopardy
double
and fundamental fairness.
aWhen defendant
acquitted—for any
has been
may
again
reason—he
not
be
prosecuted for the
Tropea, supra,
same crime. State v.
78 N.J.
309;
Moreover,
Lynch, supra,
State v.
death that the errors sentence penalty impris should result in modification of the death to life case, onment. In and defendants were tried convicted of robbery. murder in deliberating the course After hours, jury binding several the asked if it could return a verdict parole. imprisonment possibility Although of life without that, judge replied negative, explain the trial he failed to White, jury supra, prohibited under State v. N.J. parole deciding punishment. from consideration of when The appeal, On then sentenced defendants to death. this prejudicial trial court’s error was ruled that the but Court solely reargu the error to the death On related sentences. ment, punish that a the issue of Court held new trial on Laws, inappropriate. ment alone would State be upon primarily imprac this decision N.J. 511. We based ticality the costs in terms of such a trial. Court noted that partial money of time and the State of either a or full retrial Moreover, very large. the Court was likely would most operation unable to conceive of a trial. Id. at 511-12.47 my opinion, these relevant, considerations remain if not
dispositive, deciding the correct disposition of this case. previous When the trial has prolonged been complicated, it fundamentally would be subject unfair to defendant to the rigors painful of another death sentence trial. See State v. Gregory, supra, 510; 66 N.J. Scott, United States v. cf. 82, 87, 2187, 2191, 98 S.Ct. U.S. (1978) 57 L.Ed.2d 71-72 (“[T]he State with all its power resources and should not be repeated allowed to make attempts to convict an individual for offense, alleged an thereby compelling ... him to live in a continuing state anxiety insecurity.”). When prac it is tically impossible rectify punishment the issue of remand, on considerations of fundamental preclude fairness should such a retrial. case,
In this although the proceedings bifurcated, were guilt trial was prolonged produced and the record therein became the sole evidential record in penalty phase trial. The end result was no unitary different from a trial on guilt punishment. Thus, we adopt should salutary resolution of Laws modifying defendant’s sentence to life imprisonment.
More importantly, other implicating considerations also no- *275 tions of jeopardy double and fundamental fairness militate against the again being defendant once exposed to the death penalty. penalty murder-death statute contem- majority may 47The holds that defendant not be resentenced to the death penalty “irrevocably merely because he has possibility lost not a theoretical but that, a charge], substantial likelihood jury absent the [coercive Allen the would resulting imprisonment have reached a verdict rather than death." Ante at effect, 314. In saying the impossible Court is that it would be and fundamen- tally attempt unfair jury to to reconstruct the deliberations on remand: the course respect majority tacitly cannot be rerun. adopts In this the the ratio- Laws, 511-12, supra, relating nale of State v. impracticality 51 N.J. at the of a sentencing retrial on the issue alone. possible plates three final verdicts: a unanimous ver- death, dict that results in a sentence of a unanimous verdict life imprisonment, results and a non-unanimous verdict in a imprisonment. case, that results sentence of life In this argues jury defendant that the had in fact reached non-unani- a and, therefore, mous verdict imprison- that a sentence of life imposed. ment have should been
I believe that the improperly accept trial court refused to the jury’s a jury communication as non-unanimous verdict. The had it permissible been instructed that was to reach a non-unan- imous verdict and that the result imprisonment. would be life Moreover, it had deliberated sufficient amount of time to have reached such determination. While the intended effect clear, jury’s crystal communication was not the trial court was in not clarifying meaning. derelict its If the court had allowed jury clarify communication, might further its jury have indicated that the non-unanimous verdict was intended to so, disposition. its having be final Not done the communication accepted by should have been at its face value—a determination jury agree. Thus, it could not the trial irrevoca- court bly deprived opportunity the defendant of the had have this jury impose imprisonment a sentence of life than the rather penalty of death.
If jury disposition—a had such a reached non-unanimous protect verdict life imprisonment—double jeopardy would Bulling- defendant from a retrial on the death sentence. See Missouri, 1852, 68 ton v. 101 S.Ct. L.Ed. U.S. Unfortunately, 2d 270. and determina deliberations reconstructed, tions rerun. cannot be the course cannot be consequence Under of ambi these circumstances—when the guity may to the of this death—defendant is entitled benefit Thus, important express doubt.48 announcement (1966), Aljoe, 48In 420 Pa. the court found Commonwealth 216 A.2d resulting jury-determined from sentence, error in the of a death imposition *276 jury inability agree of on its to a unanimous verdict should be deemed a non-unanimous verdict—which results a sentence grounds On imprisonment. of life of jeopardy and double fairness, fundamental a death retrial is barred. addition, In the sentence of death this must case be viewed evidence, as founded on insufficient thus triggering the double jeopardy As clearly emphatically recognized bar. and by the majority, returning the trial court coerced the jury into for the death unanimous verdict sentence. Ante at 305. Af- the jury ter announced it that could not reach unanimity, the gave court three separate trial additional charges. At no time during added these instructions the jury did court remind the the of penalty finally that issue could by be resolved a non- verdict, resulting in imprisonment. unanimous a sentence of life Further, repeatedly, the improperly court em- erroneously jurors phasized “importance reaching to the the of a unanimous Indeed, verdict.” the by failing court indicated that to reach unanimity, the members the were betraying their oaths jurors shirking responsibilities their as citizens. emphasized trial court more than once the amount time case, effort that into implying jurors went that would responsible wasting all of if they those resources failed unanimity. Finally, to reach the trial court remarked juror’s task—whether or not put defendant should be “rather simple.” death—was Czachor,
In disapproved State v. N.J. we charge unduly the traditional Allen it was because coercive. case, supplementary this instructions trial delivered clearly offending compulsion court were rife with the Czachor misconduct, and remanded with directions resentence the prosecutorial defendant to life The Court determined that the error was imprisonment. disagreement jury and, the death equivalent consequently, sentence should be reduced to since statute, life as does imprisonment jurors statute, life New authorized if were unable to Jersey imprisonment reach as to sentence. unanimity
465 against charges “permit strictures jurors that do not to deliber- objectively, freely, ate and with an untrammeled mind.” Id. at 402. We noted in Czachor that a trial court’s jury remarks to a it render prevent that should a unanimous verdict so as to a expense “waste” time resources and avoid additional are completely improper—even ordinary prosecution, in the criminal a trial may where second result Id. because a deadlock. at trial, 398. Such remarks are particularly misleading capital in a a simply where non-unanimous is verdict a deadlock that trial, result will a second but constitutes a final resolution the case. problem underlying
The caused by the Allen-type coercive charge, recognized ante at majority, the is its Czachor, purpose jury “to undo a 82 N.J. deadlock.” trials, capital however, In 398. murder a defendant has the State, Lewis right to a non-unanimous verdict. See v. 369 So. State, v. (Fla.App.1979); 2d So. 2d Kozakoff State, (Fla.D.C.A.1975); Bell v. (Fla.D.C.A.1975) So.2d (cases holding right hung that defendant has a jury). to a Thus, Allen charge capital an in a especially murder is trial case, ordinary offending intolerable. charge an criminal the mistrial; deprives trial, the defendant of a in a murder it deprives him of his life. case, Allen-type
In this is clear charges it that succeeded Thus, in “undoing jury deadlock.” defendant was not simply deprived hung of a mistrial jury, based on he was deprived acquittal penalty. of much more—an of the death circumstances, jeopardy Under these double and fundamental principles preclude fairness the retrial of defendant on the Lynch, supra, sentencing See State N.J. issue. 327. Further, finding the trial court’s instructions were error, impermissibly coercive and constituted reversible necessarily jury compelled Court concludes was significant, return the What particularly death sentence. however, clearly jury inability is that demonstrated an c,n uncoerced unanimous unwillingness bring in verdict the death sentence. that, inescapable conclusion is absent compulsion, jury this would not have returned the death penalty, rather it would have sentenced impris- defendant to life onment. We are entitled to infer that before it was subjected compulsion, to unwarranted had found the evidence legally insufficient to sustain a acquittal of death. An upon based evidential insufficiency triggers double jeopardy and bars a retrial. See State v. Lynch, supra, 79 N.J 327. The apply bar should under these circumstances.
Moreover, in Lynch, supra, 340-41, State v. 79 at N.J. this Court “A observed: defendant generally is entitled to have a proceed conclusion, trial to its to be free from the harassment prosecutions, of successive only and to receive punishment one noted, an offense.” already As ordinary in the criminal case a non-unanimous verdict will not terminate a criminal prosecution. hung jury A signify will a mistrial and the de- fendant will be tried again—although may there be cases where fundamental fairness reprosecution will bar following a mis- Abbati, trial. See However, State v. 99 418. N.J. capital murder trial can by be concluded a non-unanimous Hence, verdict. because a defendant is “entitled to have a trial proceed conclusion,” to its defendant here was entitled to have his fairly finally case ended a non-unanimous verdict.
Finally, I believe possesses the Court power the inherent to modify the sentence in this case to life imprisonment. In State Laws, supra, 501, v. 51 carefully N.J. we history traced the development judicial power to modify review and sentences. The State grants Constitution also this Court the authority to jury-determined reduce a death sentence to life imprisonment.49 original jurisdiction The appel- clause and the jurisdiction late or provide strong “last resort” clause support VI, 2, provisions 49The relevant constitutional are: N.J. § Const. 1947 art. para. (Supreme appellate jurisdiction 1 Court exercises in the last resort in all provided Constitution); VI, 5, para. (grants cases Supreme § art. 3 to original jurisdiction may necessary Court complete such be to determination
467
position.
original jurisdiction
for this
authority empowers
appellate
independent findings
courts to make
of fact when the
factual determinations
the trial
are incomplete
court
Johnson,
(1964);
erroneous. See State v.
42
146
N.J.
State v.
(App.Div.1955);
Richardson,
38
Taylor, N.J.Super. 6
4
State v.
N.J.Super.
(App.Div.1949).
503
At the time of the
deci
Laws
sion,
original jurisdiction
already
clause had
been invoked
Appellate
modify
a trial court’s sentence
by the
Division
excessive,
manifestly
though
statutory limits.
even
within
was
Johnson, N.J.Super.
(App.Div.1961).
414
v.
See State
Moreover, this Court is
original jurisdic
vested with “Such
may
tion as
necessary
complete
any
determination of
Const,
VI,
5,
cause
review.”
para.
on
N.J.
of 1947 art.
3.
§
conjunction
read in
grant
When
with the
Supreme
jurisdiction
appellate
Court exercise
in the last resort
in all
Constitution,
VI,
provided
1—capital
cases
in the
para.
art.
§
subset,
being
VI,
1,—the
para.
cases
clear
art.
Court’s
§
modify
power
imprisonment
a sentence from
life
death to
obvious, particularly
exigent
See,
circumstances.50
Fra
e.g.,
States,
denied,
dy
(D.C.Cir.),
F.2d
v. United
cert.
(1965);
U.S.
L.Ed. 2d
Williams
State,
Sorrentino,
(1931);
183 Ark.
In
“the state
all its
and
not
with
resources
should
impose
to
repeated attempts”
be allowed to make
the death
VI, 2,
review);
any
para.
(Supreme
empowered
cause on
Court
to
§
art.
and, subject
governing
in the
make rules
the administration of all courts
State
law,
courts);
VI, 5,
practice
procedure
para. 1
§
to
in all such
and art.
causes).
(providing
appeals
Supreme
capital
for
to the
Court in
50Arguably,
Legislature’s prohibition
prosecutorial
waiver of the death
on
penalty,
proportionality
statutory provision
combined with the
for
review—
power modify disproportionate
in this
to
which creates
Court the
to
sentences
modify
only
imprisonment—limits
power
life
Court’s
death sentences
this
However,
Legisla-
proportionality
seem
review context.
it would
odd if the
proportion-
in the
ture’s recent authorization of this Court’s review of sentences
ality
limiting
authority
only
context was construed
that context.
as
Scott,
in this case.
at
United States
U.S.
principles jeopardy prohibit of double and fundamental fairness exposing again defendant once to the onerous trevail of a death-penalty trial.
VI. thought. A final There is no more difficult constitutional issue, system power safeguard that circumscribes state life, capital punishment, capital individual than the issue of punishment power is the against exercise of ultimate state individual, issue, moreover, the denial of that life. no other gulf legalism does the reality appear between arcane and brute wider; it is attempt futile to to reconcile in one’s mind the justifications penalty jurisprudence abstract of death with pain suffering morality. of Asaline Stokes. Law cheats primacy society reposes, against
Because our state, life, however, in individual no other issue so demands legal just. doctrine be coherent and Society is entitled to express through outrage its institutions the felt when lives such else, as Asaline are senselessly; nothing Stokes taken so if this outrage expresses place the value we individual life on reaffirms our sanctity commitment to the of individual life. As guardians of the Constitution that embodies that value and that commitment, however, the Court must never suffer state ac- replicate remotely irrationality tions to even of a Thomas through Ramseur. Were the state to do so the unreasoned life, imposition traducing of death it would be individual honoring deserts, just it. In a moral code of Thomas Ramseur may upon deserve the same treatment he visited Asaline Stokes; Constitution, however, under the the refusal to allow arbitrary the state to take life an irrational or manner including cruelly affirms the value of all life the life so taken. define, penalty decisions This Court’s murder-death will *280 tolerated, by degree enormity of arbitrariness difference between the value places upon the Constitution indi- vidual life and the value placed the murderer upon the life of his manner, victim. When the state arbitrary takes life in an begins this difference to blur. We are all diminished life; taking violent of innocent an our assurance that constitu- however, tional integrity, values retain only is our abiding consolation.
O’HERN, J., concurring in the result. part, For part reversal in and remandment affirmance POLLOCK, —Chief Justice WILENTZ and Justices CLIFFORD, O’HERN, GARIBALDI and STEIN—6.
Opposed—Justice HANDLER—1. WEINBERG, GROSS, PAUL F. AND MILTON T/A TWIN BRIDGE APARTMENTS, PLAINTIFFS-APPELLANTS, DENNIS DING DINGER, WIFE, ER AND SHIRLEY HIS ASSOCIATED DEVEL OPERS, MILTON AND SCHWARTZ AND ASSOCIATES SYMES ENGINEERING, DEFENDANTS, AND PENNS WATER GROVE COMPANY, DEFENDANT-RESPONDENT. COLE, WIFE, STEVEN A. COLE AND BETTY L. HIS PLAINTIFFS- APPELLANTS, DINGER, WIFE, v. DENNIS AND SHIRLEY HIS POINT, DOE, OF TOWNSHIP CARNEYS JOHN A FICTITIOUS NAME FOR THE BUILDING INSPECTOR OF THE TOWNSHIP POINT, COMPANY, OF CARNEYS COLONIAL MORTGAGE T/A APARTMENTS, DEVELOPERS, TWIN BRIDGE ASSOCIATED CYNWYD, P.A., SCHWARTZ, BALA AND MILTON DEFEND ANTS, COMPANY, AND PENNS WATER DEFEND GROVE ANT-RESPONDENT. Reargued October Argued 6, 1986. October April Decided 1987.