State v. Rose

аggravated sexual assault as well as the evidence of dimin- capacity, ished do not in the context of the enhanced standard justify of review reversal of defendant’s murder conviction. Finally, I continue to believe that constitutional standards and principles impugn of fundamental capital fairness our murder- penalty enacted, death statute as interpreted, applied, as and as join majority’s and thus cannot opinion but would concur in result, its with exception the noted aggravated sexual assault conviction. POLLACK,

Justices HANDLER and concurring part dissenting part. For part, part reversal in and remandment affirmance WILENTZ, CLIFFORD, —Chief Justice O’HERN, and Justices GARIBALDI and STEIN—5. JERSEY, PLAINTIFF-RESPONDENT,

STATE OF NEW v. TEDDY ROSE, DEFENDANT-APPELLANT. 2, Argued February September 1988 Decided 1988. Defender, II, Astore, Deputy Public and Patricia A. Matthew Counsel, Kern, Designated argued appellant cause for Slocum, Defender, attorney). A. (Alfred Public Brunell, Prosecutor, Hilary argued L. Assistant cause Tate, Prosecutor, Jr., respondent County H. Essex for {Herbert Brunell, attorney; Duelly, A. Hilary L. Elizabeth Marc J. Friedman, Gerson, Lincoln, Virginia M. Donald Frederick J. brief). Prosecutors, Sears, County Essex on the Assistant Schwartz, General, argued Faye Deputy Attorney Leslie Edwards, curiae, Attorney Cary cause amicus General {W. Jersey, attorney). Attorney General of New opinion was delivered Court STEIN, J.

Defendant, Rose, Teddy by County jury was tried an Essex Irvington police for the murder of officer Anthony Garaffa. He was convicted and to death. appeals directly sentenced He 2:2-1(a)(3). right. to this as of Court R. We affirm his.convic tions for and murder for the related offenses.

The of the sentencing proceeding fairness case this was by prejudicial marred a series of errors. These the lack include limiting of a instruction by the trial court concerning evidence past during defendant’s conduct elicited the State cross- witnesses, examination of defense several improp instances of Prosecutor, er conduct the Essex County and the absence any clarifying jury concerning instructions to the its function factors, weighing aggravating 3c(4)(f) two N.J.S.A. 2C: and 11— (h), based on identical evidence. We therefore set aside the death sentence remand the matter to the trial court sentencing new proceeding.

I. shocking This involves the killing case and senseless of an Irvington police officer. The uncontested adduced evidence during phase guilt August of the trial demonstrated that on 8, 1984, defendant, Rose, approximately p.m., at 11:45 shot and Irvington police Anthony killed officer Garaffa a sawed- with shotgun. off evening friend,

Earlier that defendant had been out awith returning shortly p.m. in Irvington to his home after He 11:00 approached by acquaintances, Gerry two Cuccolo Paul They they planned burglarize pizza Palermo. told Rose restaurant and asked to some of borrow Rose’s tools. Rose tools, testimony loaned them but the contra- trial was dictory Rose agreeing about also act as a Cuccolo lookout. however, proceeded pizzeria; burglary and Palermo to the plan hallway was aborted when Cuccolo was observed in the leading pizza parlor. two pry returned a bar to

Rose, Palermo, consent, and possession with Rose’s retained the other tools.

Rose returned from his car Springfield to the corner of Palermo, carrying Avenue and 40th Street with a white canvas bag over his bag shoulder. was a shotgun sawed-off he purchased had a few weeks earlier in Pennsylvania. They joined men, young Cuccolo and two other Michael O’Keefe and person known as “Mark.” It was then about p.m. 11:30 departed, Cuccolo,

Palermo and Mark O’Keefe, and and Rose walking started down 40th Street. Rose took the lead and behind, Cuccolo followed about five to seven feet with O’Keefe right. Irvington to his An police passed car by. Rose waved to thought driver and told Cuccolo that he it was someone he patrol Cuccolo, knew. The passed O’Keefe, car and Rose and pulled up to the corner. The up driver then backed patrol car, stopping Cuccolo, O’Keefe, abreast of and Rose who stood by the curb.

Irvington Police Officer Anthony Garaffa driving was patrol car. stopping Cuccolo, After O’Keefe, car beside and Rose, got he approached out and them. Officer Garaffa held a flashlight in his hand. He shined flashlight on the white bag canvas still Teddy over Rose’s inquired shoulder and about its According contents. testimony of Cuccolo and O’Keefe, responded bag Rose that the contained a “rocket.” responding As he was to Officer question, Garaffa’s he re- bag moved the placed from his shoulder ground. and it on the Officer Garaffa asked to see what bag. was At that point, put Rose bag, his hand in the up, raised it said “and this,” bag held the to Officer Gаraffa’s stomach and fired the shotgun. Officer Garaffa was knocked five or six feet into the street, flat on his back.

Rose dropped gun attempted and fled. Cuccolo to aid Garaffa, Officer then tried help patrol to summon with the car radio response. but received no Cuccolo left the scene in an assistance, effort to obtain Irvington and found Police Officer vicinity investigating who was in the Robert Williams burglary pizza parlor. Officer Williams ran aborted patrol car. He found Officer Garaffa toward Officer Garaffa’s vehicle, severely in the street behind the semi-conscious and immediately Officer Williams radioed for assistance. wounded. police pulse officers arrived at the scene. Garaffa’s Other weak, breathing rapid police and his was labored. The him began supplying oxygen, emergency with medical placed in technicians arrived. Before Officer Garaffa could be ambulance, arrest, experienced he an cardiac and the medical cardio-pulmonary had to administer technicians resuscitation. regained In the ambulance Officer Garaffa consciousness and pain without assistance. He had severe in was able to breathe legs by paramed- his and lower back and had to be restrained College Hospital in ic. He arrived at Newark at about 12:00 According Corbyons, to Doctor Thomas the head of the a.m. Team, College Hospital Trauma when Officer Garaffa arrived room, pressure” emergency in the he had “no blood and a low Preliminarily, steps heart rate. were taken to assist his breath- ing pressure and restore his blood and heart rate. He was then operating Corbyons room. Doctor described transferred an three-quarters injury Approximately his as “enormous.” of the away,” aorta was “shot and the vena cava was lacerated over wadding shotgun length.” “almost its entire The shell Despite surgeon’s spinal was imbedded in the column. efforts, stopped beating during heart sur- Officer Garaffa’s him. He gery, and the medical team was unable to resuscitate pronounced dead at 3:05 a.m. meantime, in defendant had driven to his aunt’s house police He told his aunt that he had shot a Monmouth Junction. house, Debby Irvington. From his aunt’s he called officer Wolfe, evening, he had with earlier that the woman been told her that he had shot Officer Garaffa. Defendant and aunt, Barracks of the New Pyne, Helen drove to the Princeton Jersey 1:00 a.m. and 1:30 a.m. Defendant State Police between he had Sergeant Gary Knight told of the State Police that shot 472 Irvington, police officer and that he wished to confess in Sergeant Knight

order to ease his conscience. contacted the Irvington Department Police Irvington police to confirm that an shot, had in fact officer been and that defendant was wanted in shooting. began connection with the When Rose to tell Ser- geant Knight occurred, Knight interrupted give what had Arizona, warnings. 436, him Miranda Miranda v. U.S. (1966). Knight S.Ct. L.Ed.2d 694 then administered warnings a second Miranda time to be certain the defendant rights. understood his

Sergeant Knight guilt phase testified at the about defend- ant’s statement to him: What did he tell Q. you happened? gun bringing A. He said that he had taken a out of the trunk of his car and it into the house into where he lived and that he was confronted aby police gun officer. He had the in a sack and that when he was confronted officer, officer had stated to him what was the sack. He

police police stated that he had a bottle rocket. officer then asked him —the officer then asked him to take police police object bag. out of the At that time Mr. Rose stated to me that when he took the out the sack— weapon Did he tell he reached into the sack? Q. you A. Yes. right. All Q. A. He reached into the sack and when he it out of the sack it pulled gun had cocked and when it came out of the sack the apparently went off striking the officer abdomen. police [the] sweating Defendant was spoke and nervous when he to Ser- geant Knight; ashen,” “pale, frightened. he was and He expressed hope that Officer Garaffa would recover. Eugene Czaplinski

Detective and two other officers from the Irvington Department Police arrived at the Princeton Barracks warnings sometime after 2:00 a.m. Miranda were adminis- tered, signed waiver-of-rights and Rose a form. Detective Czaplinski interrogated defendant, recording then both the questions typed and answers on a statement that defendant signed. In his gave statement defendant this account of the shooting: shotgun pulling bag back the hammer into the I cocked I reached [A]s gun. just just fired the him and I I looked at

with thumb. my gun was loaded he knew the Czaplinski told Officer Rose fired it. he cocked and 12-gauge, 7V2 shоt shell when a with “panicked, because he shot Officer Garaffa He stated that he get caught.” not want did Irvington that back to took the defendant police

The officers Miranda gave a second warning, Rose night. After another positive he made a identification in which written statement taking any drugs or alcohol before shotgun, denied “very good” treat- he had received shooting, and stated that in. himself time he had turned police from the ment by the defendant at completed signed This statement a.m., August 9. 6:34 (1) defendant for County grand jury indicted

An Essex An- Irvington Police Officer knowing murder of purposeful or (3) shotgun; Garaffa; (2) of a sawed-off possession thony use it purpose shotgun with possession of a sawed-off another; (4) property person or unlawfully against (5) burglary. conspiracy to commit apprehension; hindering from charge was severed burglary conspiracy to commit counts, appeal was still time of this and at the other pending. selection, commenced on the trial

Following days ten evidence of offered detailed 1985. The State May addition, death. in Officer Garaffa’s events that resulted reasons concerning defendant’s introduced evidence was that he often shotgun, and the fact acquiring the sawed-off shooting it. The practiced him and had gun with carried about a that occurred of an incident offered evidence State also had the murder, during defendant which prior week were about to some friends as he and shotgun possession in his previously experi- they had whom male with confront black difficulty. some enced In guilt phase. no in the his

Defendant called witnesses statement, acknowledged that Rose opening defense counsel Garaffa, argued that he did so had shot and killed Officer but panic.” fear and He stressed that it in an “instantaneous act of jury to determine whether the murder was critical for the was * * * premeditation and with an evil mind.” At the “with guilt phase, requested conclusion of the defense counsel that jury charge include in its the lesser-included the trial court manslaughter. aggravated The trial court denied offense summation, charge. requested defense counsel acknowl- edged guilt. guilty The found defendant of all defendant’s charges. mitigating penalty phase,

In the defendant invoked four he under the influence of extreme mental or factors: that acted 2C:11-3c(5)(a)); (N.J.S.A. age emotional disturbance his at the (N.J.S.A. 2C:11-3c(5)(c)); capacity that his time of the murder appreciate wrongfulness of his conduct or to conform his significantly im requirements conduct to the of the law was (N.J.S.A. paired mental disease and/or intoxication 2C:11- 3c(5)(d)); concerning background and circumstances (N.J.S.A. 2C:11-3c(5)(h)). originally The character defendant factor, prove mitigating intended to the existence of another significant history prior that the defendant had “no criminal 2C:11-3c(5)(f). However, activity.” N.J.S.A. after the trial judge denied defendant’s motion to restrict rebuttal of this convictions, prior factor to evidence of criminal the defendant (5)(f). mitigating withdrew factor aggravating penalty three factors at the State advanced hearing: (1) outrageously wantonly that the murder was vile, horrible, torture, depravity it or inhuman involved mind, (N.J.S.A. aggravated battery or an to the victim 2C:11-3c(4)(c)); (2) murder committed for detection, trial, purpose escaping apprehension, punishment, (N.J.S.A. 2C:11-3c(4)(f)); or confinement for another offense (3) public that the defendant murdered a servant while the engaged performance duty victim was in the of his or because (N.J.S.A. public status as a servant 2C:11- of the victim’s 3c(4)(h)). present any The did not new evidence at the State testimony penalty phase; simply it moved into evidence all the accepted and the exhibits offered and into evidence presented guilt phase. penalty several witnesses at Defense counsel called Claus, grandmother, raised phase: Lee the defendant’s who mother; Walker, Betty Ann him after he was deserted his Rose, mother; Betty Jane the defendant’s the defendant’s sister; Rose, and Ernest the defendant’s Thomas Michael Rose half-brothers; Jr., Pyne. Eugene Hagey, Thomas and Helen Rose, Kukan, Teddy Larry employers former also testi- and expert called two witnesses: Dr. Leah Blum- fied. The defense berg Lapidus, professor psychology of clinical at Columbia Fox, Jr., psychiatrist, A. who is University, and Dr. Robert University Medical professor psychiatry of clinical at New York Psychiatry New York and Director of In-Patient Center Ciufi, Hospital. Principal Assistant University Nicholas defendant, Irvington High past and a teacher of testi- School fied, Regina Doyle, as did Marie Coordinator of Senior Out- Center, Irvington for the Mental Health who had reach Services during July at the Center from worked with Rose treatment friends of defendant also testified: to December 1982. Several Pаtinha, Mettler, Frank, Dorothy Pamela Ann Joanne Linda Korski, Wolfe, Macavia, Ann Denise Marie Debra and Suzanne during penalty Malamut. Defendant also took the stand phase. proved aggra had two prosecution found that the 2C:11-3c(4)(f) (h)), (N.J.S.A. the defend

vating factors and 2C:11-3c(5)(a) (N.J.S.A. mitigating proved ant had two factors (h)), substantially out aggravating factors and that imposed a sentence weighed mitigating factors. The court of death. new trial. The court July defendant moved for a motion, proceeded to sentence him on

denied defendant’s four-year prison the noncapital counts to a term on count two four, and a nine-month term on count the terms to run concur- guilty rently. The verdict on count three was vacated and merged with the murder conviction. challenges

Defendant his conviction and death sentence on grounds including deprivation numerous of his federal and rights state a fair constitutional trial. We now consider contentions. defendant's Constitutionality

A. challenges constitutionality Jersey’s Defendant New of act, capital punishment g, 2C:11-3c to an issue N.J.S.A. we Biegenwald, 13, addressed and decided v. 106 State N.J. (1987), Ramseur, 123, 25-26 and State v. 106 N.J. 166-97 (1987). We adhere to our penalty conclusion that the death statute does not violate either federal or state constitutional prohibitions against punishment. cruel and unusual U.S. Const, VIII, XIV; I, amends. para. N.J. Const. art. 12. 1947 of Jury B. Selection Issues Qualification

1. Death challenges death-qualification process Defendant used in the course of of jury. primary selection His jurors guilt contention is that the of phase, exclusion from because their views on penalty require the death would their penalty phase, exclusion from the violates his constitutional right by jury. Furthermore, impartial be tried an defendant argues very process qualification, that the death focusing of as willingness it does jurors impose on the penalty the death determined, in a guilt yet case in which inevitably has be jurors guilt conditions the to assume the defendant’s and thus right impartial jury. rejected violates his to an We both of arguments Ramseur, these supra, State v. 106 N.J. at 248-54, expressly implication. the first second In Ramseur, capital punishment we our observed that under act

477 trial, phases capital of a jurors “contemplate the duties of both penalty phase,” and thus guilt/innocence phase and the properly conducted interro- “the is entitled to insist on a State guilt phase capital trial to gation jurors prior capital punishment will sub- determine whether their views on jurors.” at 254. We stantially interfere with their duties as Id. — Kentucky, adhere to that view. Buchanan v. U.S. Cf. 336, -,-n. 16, 2906, 16, 2913 n. 97 L.Ed.2d 350 107 S.Ct. (1987)(upholding qualification penalty death where death n. 16 codefendant, despite assumption that sought only as to Court’s qualification “produces juries somewhat more ‘conviction death prone’ nondeath-qualified juries”).1 only than We add that trial courts, request, may take on their own initiative at counsel’s into account a defendant’s concerns about the collateral effects qualification process by addressing the issue of the death specifically in the course of the voir dire.

2. Exclusion Jurors Certain qualification test as adopted this the death Ramseur Court Supreme States Court Adams v. reformulated United Texas, 38, 2521, (1980), 581 100 S.Ct. 65 L.Ed.2d U.S. 844, Witt, v. 105 S.Ct. L.Ed.2d Wainwright U.S. (“Hence- (1985). Ramseur, supra, 106 at 256 841 State v. N.J. forth, death-qualifying in trial courts shall use the Adams test Adams, the death- jury.”). Supreme a the Court held that prevent qualification juror’s test whether the views “would juror a substantially impair performance of his duties as or the and his oath.” Adams v. in accordance with his instructions 2526, Texas, 45, at supra, 448 at 100 at 65 L.Ed.2d U.S. S.Ct. 424, 589; Witt, Wainwright supra, 469 U.S. at see also v. (the 852, “does at 851-52 Adams standard S.Ct. at 83 L.Ed.2d require proved with ‘unmistakable juror’s not that a bias be juror’s views would clarity’;” the “standard is whether of the 1Our reference to Buchanan v. does not imply approval Kentucky involving in a case a codefendant. noncapital death-qualification process ‘prevent substantially impair performance or of his duties juror as ”). a in accordance with his instructions and oath’ Ramseur, We in also noted at trial N.J. that courts must be accorded a “sound of in measure discretion” determin- ing juror’s not penalty whether or views on the death would prevent substantially juror’s performance or with interfere of his duties: weighing juror’s A sensitive and aof entire must be made appraisal response juror the trial court its resolve of whether duty question has prejudgment answering [Id. shown bias or questions. 257.] us challenges

Before defendant the exclusion of five jurors, Cacossa, Cohn, Campbell, Deborah Valeria Grace Janet Stone, George Although and Muller. objected defense counsel Cohn, juror objection removal no asserted in jurors. course of voir dire to the removal the other four We carefully interrogation responses have reviewed the and of each jurors challenged. whose exclusion is areWe convinced that in each case there is support substantial record for jurors’ the trial court’s conclusion that on the views death penalty “prevent substantially would interfere with the performance Stone, Cacossa, duty.” Jurors and Mul [their] ler flatly they impose stated would never vote to the death penalty. Campbell expressed strong Jurors and Cohn desire to avoid responsibility resulting for a decision in death and their responses highly indicated unlikely that it was that either could impose ever penalty. Accordingly, vote to the death the trial court’s jurors exclusion of these did not an improper constitute exercise of discretion.

3. Challenge Composition Grand and Petit Juries grand petit juries Defendant contends that indicted, convicted, and him under-represented sentenced blacks that, result, deprived as a the county him of his federal and state rights impartial jury equal constitutional to an and to protection grand of the laws. Defendant also that the asserts jury procedures assignment used judge the violated New process for and that the selection Jersey selection statutes forepersons blacks and women. jury improperly excluded grand assertion, challenge on defendant relies the support of this In County grand petit juries Essex composition of the in briefs in Ramseur. defendant’s advanced v. each of these contentions in fully addressed State We the Ramseur, at and we to supra, 106 N.J. 212-36 adhere opinion. expressed in that views Phase Issues Guilt

C. Aggrava- Charge to Lesser-included 1. Offense of Refusal Manslaughter ted charge the refusal to contends that trial court’s

Defendant manslaughter of de- aggravated offense the lesser-included of Prior to process him of a fair trial and due law. prived case, colloquy there guilt phase was a summations the concerning proposed the trial court counsel between to except prosecutor’s inquiry for charge. Initially, concerning flight given, be neither charge that a would confirm The trial requests charge to to court. counsel submitted charge intend that he did not to then informed counsel court Choice, offenses, citing State v. any on lesser-included re- (1985). response, specifically counsel In defense N.J. 295 charge manslaughter. The trial court aggravated quested a requested charge. denied argues the trial incor- first that court

Before us defendant on as its source the standard rectly relied v. Choice State charge aggravated determining whether or not apply that when a defendant manslaughter. we observed Choice charge, request included offense not a lesser does * * * obligation its have on own meticulously trial court does not [t]he through see if combination murder trial to some the entire record every sift manslaughter charge. might It is sustain a rationally facts and inferences charge indicate” when facts "clearly appropriateness only N.J. arises. [98 299,] trial court duty requested The that since State concedes defense counsel aggravated manslaughter charge, the standard is inap- Choice plicable, agrees and thus with defendant’s assertion that the (Arria- controlling principles are set forth in v. State Crisantos (1986): gas), 102 N.J. charge manslaughter, our Code it is for a trial court to [U]nder improper even

when if defendant, there is no evidence in the requested record to charge, manslaughter a conviction. To warrant there must be a support manslaughter “rational basis” for a verdict. * * * test of the a low rational-basis Code as did the [T]he threshold, imposes * * * permitting charge law on a lesser-included offense. pre-Code When charge the lesser-included is offense as in this requested defendant, case, obligated, the trial court is view of defendant’s to interest, examine the thoroughly record if to determine the rational-basis standard has been satisfied. (citations omitted).] N.J. at [102 276, 278 although

Defendant contends that no defense witness trial, guilt phase es were called of the evidence adduced during the case State’s afforded a rational basis for the to upon conclude that panic being ap defendant’s “fear and proached by led him mishandle the sawed- [Officer Garaffa] shotgun recklessly off cause the officer’s death.” Defend points testimony ant companion night of his on the Cuccolo, shooting, Gerald who confirmed that he was “sur prised” Garaffa, and “shocked” when defendant shot Officer testimony and to the of Debra Wolfe that when defendant shooting, crying called her after the and he was “[h]e Primarily, however, nervous.” defendant relies on the testimo ny Trooper Knight Police, Gary Jersey of the New State who questionеd when Trooper defendant he turned himself in. Knight testified that defendant told him he “reached into pulled the sack and when he it out of it apparently the sack had cocked gun and when it came out of the sack went off striking police officer in Supra abdomen.” at 472. [the] Although opening defense counsel statement stated that shot Officer Garaffa in an instantaneous act of “[defendant] panic,” only fear and testimony point direct on this came Irvington Czaplinski, from police Eugene detective who had he Czaplinski testified that asked Detective interrogated Rose. officer?”, replied: Rose, and defendant “Why you did shoot get caught.” not panicked, did want “I testimony simply a argues Trooper Knight’s State him, that defendant of defendant’s statement paraphrase gun was fired “accidental- Trooper Knight that the never told cocked,” “the phrases had and “apparently that the ly,” and acknowledgments guilt vague off” were gun went cocked or any explanation of the hammer became how omitted that defendant’s shotgun was fired. The State asserts the how given Czaplinski to describing shooting, the written statement officers, sugges- possible Irvington police any refutes other shooting was accidental: tion that bag shotgun by bag I I into the cocked the I into the and as reached reached just my just I him and fired pulling looked at back the hammer with thumb. gun. Trooper Knight phase, penalty he 2During Rose denied that told shooting was accidental. you Sergeant Knight the State from Q. when told It’s also not true accident, by you policeman Garaffa acci- Officer shot the Police either, was it? That the truth dent. wasn’t I never said accidental. A. accident, apparently did it? Q. didn't cock That hammer A. No. Q. You it. cocked Yes. A. back, right, you pull back? It’s pulled didn’t it Q. You this hammer back, tough pull isn’t it? kind of No. A. it, back, right? you you pulled you it cocked Q. Not for but Yes. A. trigger in the you shot Garaffa Right pulled Officer Q. before stomach? Yes. A. cocked, apparently Sgt. Knight that wasn’t you that it Q. So when told true, it? was No, I never said that. A. you lying said that? Q. he said So he’s when something. misquoted might He have A. heavily testimony The State also relies on the uncontradicted expert, Kenneth He its ballistic Salvato. testified that shotgun accidentally; weapon not could be fired that to fire the required two-step procedure cocking pull- the hammer and — 4)U ing trigger; approximately pounds pressure and that required pull trigger. carefully independently

We have scrutinized the record and testimony pertinent requested reviewed all of lesser- charge. included-offense our view the not evidence would returning have a rational afforded basis a verdict convicting of aggravated manslaughter. the defendant N.J.S.A. C:1-8e; (Arriagas), 2 v. supra, State Crisantos N.J. 275. aggravated manslaughter Code defines as follows: aggravated manslaughter Criminal homicide constitutes when the actor reck manifesting causes death under circumstances

lessly extreme indifference human life. [N.J.S.A. 2C:11-4a.] Code, Under the one recklessly respect acts “with to a material consciously disregards element an offense he when a sub unjustifiable stantial and risk that the material element exists will 2C:2-2b(3). or result from By his conduct.” N.J.S.A. contrast, “knowing,” respect result, conduct is a with to if the person practically is aware “that it certain that his conduct result,” 2C:2-2b(2); will cause such a it is “purpose N.J.S.A. ful,” if person’s object” it is “conscious to cause a such the. 2C:2-2b(1). result. N.J.S.A. principal aggravated

Defendant's contention is that man- slaughter charged should have been because there was some suggesting evidence in the record shooting that the was acci- dental and not intentional. overwhelming We find that the weight proofs guilt phase the in the that defend- establish firing shotgun ant’s act of the was volitional. Defendant’s familiarity operation shotgun the with its and destructive capacity practiced was illustrated evidence that he had shooting during it on the preceding several occasions weeks the the this” as he fired homicide. His use the words “and Czaplin- graphically statement to detective shotgun, his candid just gun,” the “I him and fired the just ski looked at that concerning the testimony expert of the ballistics uncontradicted to pull trigger to the combine demonstrate pressure required prompted to fire the shot- may have defendant that whatever firing weapon was inten- gun, conduct in the defendant’s guilt-phase not accidental. the context all the tional and Trooper Knight not testimony, statement to could defendant’s shooting was rationally construed as an assertion that be Rather, State, argued by as the statement accidental. for responsibility acknowledgment of defendant’s reflected an explanation of how it occurred. It shooting any without a basis for a speculаtive far and insubstantial too constituted to Hence, refusal manslaughter trial court’s verdict. aggravated lesser-included offense of charge with the jury could have manslaughter, assumption on the that accidentally, was not error shooting occurred concluded the guilt phase did not afford during the since the evidence verdict. basis” for such “rational shooting occurred argument that Defendant’s collateral get caught” does “did not want “panicked,” he because negate nor the evidence question volition not relate to an Panic is knowing purposeful. shooting was sudden, groundless, condition, even characterized emotional pursu- justification conduct fright. It not constitute a does (codifying -11 valid Code, 2C:3-1 ant to the see N.J.S.A. recognized as a included), panic defenses, nor was “panic” not Further, “panic” defendant’s common law. defense crime at in the shooting not offered as evidence at the time of the ie., capacity, prove a mental defect to diminished guilt phase of an element mind that is not have a state of defendant did Breakiron, 2C:4-2; 108 v. see State of the offense. N.J.S.A. 591, (1987).3 N.J. 607-09 dissenting colleagues

Our assert that of because defendant’s reckless, of “panic,” may his state mind been have rather than knowing purposeful, respect with result the shoot ing Officer Garaffa. Their contention is that even if the intentional, firing shotgun of the was the record afforded jury a concluding rational basis for that defendant’s conduct prompted by panic, was “recklessly” and therefore defendant death, 2C:11-4a, caused Officer Garaffa’s N.J.S.A. by con sciously disregarding the substantial risk that death would firing shotgun. from 2C:2-2b(3). result of the N.J.S.A. 550-553, (Handler, at dissenting); Post 554-560 J. post at (Wilentz, C.J., concurring dissenting). Justice Handler hypothesizes panic” may defendant’s “blind prevent have him realizing ed from how close he was to Officer Garaffa or weapon that the was abdomen, aimed at the officer’s may he have thinking acted without about consequences (Handler, J., his actions. Post at dissenting). colleagues’ Our position ignores reality that in the insanity absence of capacity, person firing or diminished shotgun sawed-off into point-blank the abdomen another range necessarily is practically aware that “it is certain” that such 2C:2-2b(2). conduct will cause the death. victim’s N.J.S.A. during penalty phase 3We also expert note that of the trial defendant’s witness, Lapidus, experience Dr. Leah testified that defendant tended "mas expressed sive confusion [and] commotion" in stressful situations. She Garaffa, opinion experi that when defendant was confronted Officer he overwhelming control," panic, "a enced kind of loss of that resulted in the shooting. Lapidus’s testimony support Dr. offered one existence of factors, 2C:11-3c(5)(a), statutory mitigating provides: which The defendant was under the influence of extreme mental or emotional prosecution. disturbance insufficient to constitute a defense to above, considering penalty phase, all As noted after of the evidence in the proved mitigating found that defendant had of this factor. existence appears significance undue to an position also to accord Their appears guilt- once the “panic” to that isolated reference noted, that Czaplinski As Detective testified phase trial record. Garaffa, defendant, responded: why asked he when shot Officer get caught.” There was no other “I did not want to panicked, any or other testimony guilt phase in the from defendant suggested that that defendant was unaware witness shotgun consequence firing at Officer Garaf- of the inevitable otherwise, in testimony, expert or There was no fa’s abdomen. phase capacity to be aware of guilt that this defendant’s of a of conduct diminished because inevitable result his was Hence, aggravated man- or emotional condition. an mental speculate, in jury to slaughter charge would have invited processes, about evidence of defendant’s mental the absence of in some with “panic” defendant’s interfered manner whether his There consequences act. capacity his to be aware of guilt phase put jury before the in the simply was no evidence supported such a determination. Defendant’s that would have get caught,” does “panicked, he did not want to statement that to conclude that a rational basis for not constitute firing merely thus reckless and unaware that defendant was “practically was shotgun into Officer Garaffa’s abdomen find no error in the to We therefore certain” cause death. charge aggravated manslaughter.4 to court’s refusal trial argument, that asserted it was inconsistent oral defense counsel 4At of mind in offer evidence оf defendant's state unconscionable for the State to knowing guilt the homicide of the case to that phase prove contending evi- that there was insufficient while simultaneously purposeful, manslaughter. charge We find to warrant a lesser-included offense dence state of mind was no in the State’s Defendant’s put inconsistency position. guilt during opening argument In any counsel’s phase. issue defense knowing or on that the murder was event, it was incumbent the State prove discharge did not Its that attempt responsibility preclude purposeful. guilt taking evidence at the close of the State from phase, position, basis for a verdict of was insufficient rational adduced provide manslaughter. 2. Admission Evidence Past Conduct of Defendant’s

the Guilt Phase Defendant contends testimony concerning two instances past improperly conduct was during admitted into evidence guilt phase, thereby the depriving him of a fair trial. The first purchase incident concerned defendant’s of the sawed-off shot- in gun Pennsylvania or one two months shooting before purchased gun Seale, Officer Garaffa. Rose from Gordon a Pottstown, operator Pennsylvania. forklift The State called objection, Seale as a witness. Over defense counsel’s Seale paid sixty gun, testified that Rose him dollars for the which he having problems needed Jersey because “he‘was some over in niggers.” rejected with some The trial court the contention testimony that the was unduly inflammatory, irrelevant and concluding it that was material to third count of the charging indictment defendant possession shotgun with a purpose with to unlawfully. use it N.J.S.A. 2C:39-4a. The court stated: fact of the matter is the heard [T]he I’ve so far all seems to indicate testimony go came Officer Garaffa that no here, one to there. There expected [him] was no evidence Mr. Rose him. It would seem me to based on expected charge gun in the

very indictment that for he which had the is very purpose August relevant so the can in fact State he had the prove on 8th for weapon using it purpose unlawfully. objects Defendant also of testimony admission concern- ing a second incident an Irvington that occurred in schoolyard one to shooting one-and-a-half weeks before the of Officer Garaffa. Rose’s friend Nicholas day Silva testified that on the question he, Palermo, Paul and defendant intended to con- “ * * * Coley Hunter, front one whom as Silva described guy black I Teddy that had trouble with and had trouble with my he, brother had with.” trouble Silva testified that when Palermo, and Rose schoolyard, left their car to walk to the Hunter, order to find shotgun defendant removed his sawed-off placed right from the trunk. He pants pocket, it in his which it, shotgun had hole in “just so the went leg.” down his According testimony, put to he to gun Silva’s told defendant give it, a shit.” The away. replied, “Fuck I don’t Defendant testify to Rose's statement to permitted trial court Silva about him, overruling objection that the comment defense counsel’s was irrelevant. concerning argues testimony both inci State charge possessed to defendant

dents material August unlawfully. it shotgun Eighth purpose with a use on however, testimony the State that the was Primarily, asserts under Evidence Rule intent and establish admissible Referring to mistake accident. defense counsel’s absence of or putting state of opening statement5 as in issue defendant’s Garaffa, argues mind he shot the State that the when Officer mens requisite disputed testimony offered establish “the knowing.murder rea essential purposeful to convictions * * * ." testimony on challenges the admission this Defendant charge possession of grounds. contends that the several He contested, citing purpose an was not shotgun the for unlawful opening made in his statement.6 concessions defense counsel addition, charge jury on cites the In he the trial court’s shotgun possession an unlawful charging count of the with charge the characterized this purpose. Defendant asserts that itself, permitted “inseparable” shooting from the and count as proof shooting that also constituted proof the to find thereby obviating the for purpose, need of defendant’s unlawful statement, opening Marucci 5In defense counsel stated: * * * things might your critical decision as to the that be to One of * * * deliberately, intentionally Teddy he lives or dies is whether whether * * * premeditation and killed Officer and with an evil mind shot with Garaffa. fear and [Y]ou will panic. see that Teddy ^[********] shot Officer Garaffa in an instantaneous act of statement, opening point noted that defendant 6At in his defense counsel one defendant, using illegal" gun he also conceded that "knew that the had was shotgun, Officer Garaffa.” the "shot killed 488 prove events

evidence unrelated to defendant’s unlawful purpose. challenges the admissibility Defendant also this testimony 55, citing Soney, under Rule Evidence State v. 47, denied, N.J.Super. (App.Div.1980), certif. 87 N.J. 313 (1981), proposition for the that evidence commission of a wrong specified “crime or civil aon occasion to [is inadmissible] disposition engage show a to in such conduct at another time.” testimony Defendant also that contends the should have been any probative excluded under Evidence Rule because value outweighed possessed that it risk the that its admissibil ity danger would “create prejudice substantial of undue or of confusing the of misleading jury.” Finally, issues or the de claims fendant reversible error because of the trial court’s to instruct jury concerning failure the purpose limited which the evidence was admitted. 6. Evid.R. agree

We the testimony concerning that defendant’s purchasing shotgun reason for well as testimony as describing his way conversation with Nicholas Silva on the schoolyard August 8, prove were inadmissible to that on possessed shotgun purpose defendant with use unlawfully. it Harmon, We held State v. 104 N.J. 189 (1986),that a “requires proof violation of N.J.S.A. 2C:39-4a not only that the intended weapon, accused to use the that but he accomplish intended use it to purpose.” criminal at Id. 203. proffer by the absence of a State an intention to offer purpose possessing evidence defendant’s unlawful weapon August on Eighth “problems” was related to his with hostility Hunter, Coley blacks to his toward we find no relevance whatsoever in the testimony charge issue to the question possessed on date in shotgun defendant for an unlawful purpose.

Although question, it close we testimony is a find the somewhat relevant to the issue of defendant’s state of mind at shooting the time of and thus under admissible the criteria set forth in Evidence Rule 55 as evidence of “intent” or “absence contention agree with the State’s We mistake or accident.” mind, state of prove defendant’s obligated that it was fairly construed as opening could be counsel’s that defense knowing purposeful. shooting was Su- contesting that the guilt request at the close 5. Defendant’s at 487 n. pra support manslaughter lends charge aggravated phase for a concerning testimony the We view contention. to the State’s willing- incident, suggested defendant’s ‍‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌‍which schoolyard the Hunter, to be shotgun offensively against Coley the ness to use shoot- question whether defendant’s probative on the somewhat or accidental. We reach purposeful ing of Officer Garaffa the conclusion, greater reservation because with same but the attenuated, explanation offered about relevance is more shotgun. purchased he Seale when to Gordon defendant inclined suggested that defendant was testimony perhaps That hence, others; although offensively against shotgun to use the Garaffa, it was he shot Officer prove inadmissible shooting was question whether slightly probative on purposeful or accidental. concerning pos of the rationale articulation

Our underscores the this evidence admission of grounds sible to trial measure of discretion according some necessity for may be admissibility of evidence ruling courts on view, preferred inflammatory. In our both material the evidence of to admit disposition have been would conversation, the conversation with exclude but schoolyard limited of its because under Evidence Rule Seale Gordon Nevertheless, jury. prejudice the capacity to relevance and its overwhelming, consider we guilt was evidence of because the conver concerning defendant’s testimony the admission of error, and harmless Seale, guilt phase, to be in the sation with 2:10-2. unjust result. R. an capable producing clearly not contention, defendant’s fully agree with Finally, we failure to instruct State, court’s that the trial by the conceded this evidence for which purpose limited concerning the admitted, error. Unquestionably, was Evid.R. constituted been the the should have told that evidence towas be only question on considered the whether the State had sus- its proof shooting knowing tained burden of that the was the purposeful. view of substantial evidence of defendant’s guilt, give we do not find the limiting court’s failure to this guilt phase instruction constituted reversible error of the trial. We discuss below effect of trial court’s omission during the penalty phase limiting afford the instruc- concerning prior tion evidence of of acts defendant that was during penalty phase. elicited at 503-509. Infra Accordingly, we affirm defendant’s convictions murder and for related offenses.7 Penalty

D. Phase Issues8 Prejudicial 1. Admission Evidence Past of of Defendant’s During Conduct Cross-Examination Expert and of Witnesses, Character Combined with Trial Court’s Instruction, Failure to a Limiting' Deprived Give De- Capital Sentencing Hearing. fendant of case, At the penalty phase commencement of the of the granted trial court the State’s motion to admit as evidence in penalty phase testimony all the State’s and evidence during phase. admitted guilt The State called no other and Thus, witnesses offered no other penalty evidence. trial, phase of the opening closing aside from the argu- and counsel, exclusively ments devoted testimo- direct excerpt prosecutor's 7Justice Handler an adverts to from the summation in guilt phase, contending prosecutorial that it constituted misconduct and requires agree reversal of defendant's convictions. Post at 570-574. We improper clearly capable the comment was but it conclude that was not producing unjust an R. result. 2:10-2. points apply guilt penalty 8Defendant’s of contention that to both the phases portion opinion. will be discussed this ny expert lay produced and cross-examination witnesses by the defendant. contends that in course of

Defendant the the State’s cross-ex- witnesses, past amination of its evidence of defendant’s conduct improperly prosecutor. elicited the Defendant asserts in beyond some instances the cross-examination went far scope testimony; of direct in other the instances cross-ex- 47; challenged amination is as violative of Rule Evidence questions still other instances defendant’s contention that posed by prosecutor unfairly inaccurately or characterized past improperly events or referred to events not otherwise proved by evidence in the record. of defendant’s conten- Some regard pertain charge prosecutorial tions this also Complementary misconduct. at 513-519. to these con- Infra argument tentions is defendant’s the admission of the past penalty phase of defendant’s evidence conduct instruction, obligated give limiting the trial court to a Evid.R. so that the would not consider this evidence as proved by supplementing aggravating factors the State. instruction, limiting at 503-509. Without such a defend- Infra argues, jury’s penalty phase may ant verdict in the have misunderstanding influenced its of the limited rele- been past of the evidence of conduct. vance defendant’s discussing applicable legal principles, Before we summa- portions testimony expert rize those of the and character challenged by witnesses defendant.

Expert Testimony Lapidus, professor psychology at Dr. Leah of clinical Co- University, expert witness. lumbia was defendant’s first She opinion her of defendant’s mental condition on the results based tests, battery interviews with psychological of a of standardized Clinic, defendant, Irvington Mental Health records from the and of his relationships accounts of defendant’s with women prior to the visit with his mother in Indiana a few months shooting shooting, regarding and details of Officer Garaffa. Lapidus Dr. psychologi- testified that the results of defendant’s testing disturbance,” cal were consistent with “serious mental psychotic pattern.” and that defendant exhibited a “borderline She stated that in a stressful experi- situation defendant would confusion, commotion,” thinking ence “massive that his would chaotic,” become “confused and and that he functioned with * * panic impulsivity “unrealistic under stress She in generalized testified fashion previously that he had exhibit- “panic rage type” ed a relationships reaction in his with women, particularly when he felt anticipated insecure or relationship would terminate. In such Lapidus situations Dr. panic said Rose would prevent “strike out” to abandon- shooting ment. She testified that the of Officer Garaffa was patterns, consistent with his describing behavior it as a reaction “overwhelming control, panic, loss of sense of catastro- [and] phe.” She testified that shooting at the time of the defendant was under the influence of “extreme emotional disturbance” ability and that requirements his to conform to the of the law “severely impaired.” During Lapidus by cross-examination Dr. was asked prosecutor incident, to schoolyard reconcile the in which Rose refused to suggestion put accede to his friend’s that he shotgun away, with testimony describing her “sugges- Rose as eager please. tible” and In response, Lapidus explained Dr. opinion that in her Rose’s recent visit to Indiana to visit his mother, him, “catastrophe” who had abandoned awas that left Rose with feeling “desperation.” To counter the witness’s testimony prompted that Rose’s actions were by his unsuccess- attempt ful relationship mother, to establish a with his prosecutor questioned Lapidus Dr. about defendant’s conduct prior visiting his mother: What do think Q. about the fact that he 3 before that or at you least years girl before that Indiana

years that he in the face catastrophe, punched because she didn’t want to do it his Doesn’t that sort of show that he way? long had this attitude before he went to Indiana? Did know that? Did you you girlfriends know that fact that he had one of his punched in the face? (Emphasis added.) A. I doing something read a about that but Ias recall it wasn’t about report rejection, again but it was about exactly that theme. way being rejected girl girlfriends? was he Q. and Why all his Objection, MR. HOCHMAN: Honor. your If know? Q. you THE COURT: If she knows she could answer the Mr. Hochman. question, A. pathology, As characteristic with this kind of borderline there’s an in the emotional so that instability attachments are fine relationships to start get with and then so intense that he a kind of they kind of develops paranoid jealousy. going It becomes not panicked, attached to they’re him, he’s stay going to lose them as he lost his mother and his and the rest of it and identity so that jealous then he becomes too and becomes and and sticky paranoid then gets rejection he drives them and away he’s so terrified about and then feels a aggres- out of control frustration that at times in helpless an explodes sive reaction. Do know how the intensive Q. you situations in the I develop relationship? girlfriends? mean, said read the you of these you reports Right, girlfriend. A. and I interviewed one beating pulling Doesn’t it all start because he’s Q. them he’s their hairs up, dragging trying and punching to run them them, over with the car, them in the throwing face, ash at them? trays A. No that’s— Taking locking beating them to a motel Q. them in a room and them up deserting something them there. Don’t think that would have you to do going with the fact that to be terminated? relationship A. That’s not the or the way didn’t sequence way any reports —I single suggested just come across one he sort of out of report the blue losing without sense of threat and that he would be them that— any ******** given Do have Q. statements from these women? Were you reports they to you? girlfriend A. I read those and I interviewed one who described the reports goes along that was consistent with the that the pattern reports relationship gets begins fine for a while and then as he he to feel very attached, intensely going vulnerable and insecure and he’s very to lose it all and then he so puts withdrawing— much on them under time that then feel like pressure they Irvington 9The extract from the Mental Health Center notation of July 1982, to which the referred, read in as follows: prosecutor obviously part "Girlfriend called me names. I threw boots her and hit her. After it my expressing hit, it was like it didn’t When I it’s like happened, happen. myself. Why things my way?" added.) (Emphasis doesn’t she do regularly, withdrawing getting beat because up feel like they’re Q. They right? read? not in the you That’s reports just beating suggested anything around that that he went up I saw A. never but he doesn’t— girlfriends. with who batter I have worked people girl did read about the other cases. This case, you I don’t care about Q. dragged the street? Did read as he her down you hair he who’s [sic] pulled that one? something like that. A. I think I read got in the face? Did read that you Did read [about one] punched Q. you that one? A. I believe so. Q. Okay. got her an ash thrown at which read the one] tray Did you [about big that one? in her do remember side,

resulted in a bruise you something vaguely about an ash but each— I remember tray A. her he her car from her and tried to run remember the one took Do Q. you that one? do remember car, over with you I read that. A. Q. Okay. girls want to leave him? think that that’s these do Now, maybe why you gets egg, so intense and I think it’s the A. I think it’s chicken dependency he drives them and then he feels that then start to leave desperate they around. not the other violence, way further and then comes away concerning Lapidus Dr. prosecutor The also cross-examined prior involving defendant’s knowledge of other incidents her statement questioned about defendant’s conduct. She was “having with shotgun because he was trouble purchased he “a knife Jersey;” she asked about niggers in New was some * * * kids in fight had with the black episode where he schoolyard incident Irvington;” and she asked about trousers, defendant, shotgun in carrying the went which Presumably, these Coley Hunter. his friends to look with challenge Lapidus’s testimony Dr. questions were intended involving stress aggression to situations linking defendant’s panic. Lapidus, prosecutor During of Dr. his cross-examination statement of previously reviewed the that she had ascertained opinion her part of the records on which Nicholas Silva as prosecutor then mental condition was based. defendant's statement aloud to the Lapidus to read from Silva’s asked Dr. jury, although a comment defendant In described the state- court, ment had ruled during been inadmissible the trial the case, guilt phase prosecu- on the two occasions that the attempted concerning tor had to elicit evidence that comment.10 objection, Laрidus Without Dr. read aloud from Silva’s state- ment: “Teddy something. got A. said I have to show Paul I Paul. We walked Teddy’s parked Teddy It over to car. was on 40th Street in front of his house. shotgun put Teddy put gun

took the out of the trunk and it in a blanket. the parked Teddy the back seat next to Paul. We drove to 38th Street and the car. got put gun pants. out of the car and the I down his told him someone was it, going give to see it and he said fuck I don’t a shit. driveway by We walked over to the the school and waited for the kids black waiting Teddy to come out. While we were there said I wish we had a stolen Coley car or a van so we could take for a ride.” Coley? Q. Coley

A. for a ride. kid, right? He’s the black

Q. guess.

A. Is it? I Coley’syounger “We waited for about 10 minutes and brother came out with passed three of his friends and walked us. any you say anything youths? Did to the black “QUESTION: No, they passed Teddy pulled gun ANSWER: but walked us out the after them, pointed fucking and and said I should blow their heads I told off during guilt phase, prosecutor attempted 10Ontwo occasions elicit testimony concerning Teddy Rose's conduct and statement in connection with schoolyard pointed shotgun incident in which he at a number of black youths fucking During and said "I should blow their heads off.” the direct court, testimony proof by of Paul Palermo the after offer trial an prosecutor, may ruled that the statement have some relevance but whatever effect,” may "substantially outweighed by prejudicial relevance it have is ruled that the statements were inadmissible. Subsequently, during testimony prosecutor of Nicholas Silva the was seeking testimony clarification as to the extent to which he could elicit concerning schoolyard understanding incident and confirmed his that the previously trial court had ruled that defendant’s statement inadmissible. prosecutor you bring commented: "I understand don’t want me to out, bringing gun pointing saying, kids ‘I have out it at the black should fucking you blown their heads off.’ That's what I assume don’t want to come rulings." response, in consistent with other court stated: "That’s the only thing attempt bringing that I knew there was in.” Teddy put gun away, Springfield we are out on Avenue. (Emphasis

added.) gun? Did of the black kids see with the QUESTION: any Teddy walking turned, A. their backs were were from us. After No, they away gun that we walked back to the car and under the front seat and Teddy put us off.” Teddy dropped Although Lapidus Dr. stated that she had not reviewed records, prosecutor army questioned briefly defendant’s her period military about his “short” service and whether she aware that defendant had been was “AWOL” on several occa- sions. Fox, Jr., professor psychiatry

Dr. Robert A. of clinical Center, University expert New York Medical also testified as an separate witness. He interviewed defendant on four occasions. reports, statements, police He also reviewed the witness concerning Irvington records Rose from the Mental Health Center, “girl- and statements from two of defendant’s former friends.” He testified that he was aware that Rose had diffi- culty controlling anger, his and had on occasions struck women seeing socially. that he had been He also testified that defend- attempt ant's unsuccessful at a reunion his with mother in shooting significant Indiana a few months before the had a adverse effect on defendant’s emotional condition. diagnosed suffering

He depression Rose as from chronic as personality well as a borderline by disorder characterized insta in bility personal relationships. He testified that defendant’s prior depression magnified tendencies toward and violence were expressed after his failed visit with his mother. Dr. Fox opinion shooting that at the time of the defendant “was under the influence of extreme mental or emotional disturbance” and capacity requirements “to conform his conduct to the significantly impaired of the law was as a result of mental 2C:11-3c(5)(a),(d). disease or defect.” See N.J.S.A. cross-examination, During any familiarity Dr. Fox disclaimed records, record, record, army jail defendant’s with school or but acknowledged speaking concerning his with defendant incarcer- responded negative in the asked ation. Dr. Fox when anything him prosecutor extorting if defendant had told about jail, relationships” meals from other inmates at or about “social friendships prisoners. Although other Dr. Fox denied with any knowledge disciplinary problems high of defendant’s school, prosecutor he was cross-examined about “significance” having suspended high defendant been students, assaulting school on different occasions for other firecrackers, intoxication, selling profanity to a teacher. acknowledged Dr. Fox asked about and defendant’s brief army and two on he service occasions which was AWOL. prosecutor challenged testimony Dr. Fox’s that defend- significantly ant’s unsuccessful visit with his mother Indiana affected defendant’s behavior. “girlfriends”? the fact his treatment of How about his [Q.] history goes violence on behalf of Rose back before his visit to personal Teddy way Indiana, doesn’t it? A. back. Way back? Q. Couple years A. About years. You’re familiar with fact of time he would over Q. punch period girl right? in the her in the nose, face, punched things A. all are well Yes, those detailed. He tried to run one over with her own car? another Q. A. Chased her with a car, yes. Dragged dragged one hair and her down the street? Q. A. I think that the same the same one he chased with the car I one, was

thought. something he threw from the It Well, how about the one where kitchen? Q. big something, an hit her in the and she had bruise she was ash a tray body said for a while after remember that one? that, A. Yes. right? That was the Indiana visit, all before Q. A. That was in 81 or 82. Malamut, How about Sue Malamut? Q. n girlfriend’s

A. Sue Malamut is one of the name. Remember the incident there where she was taken to a motel him and Q. the motel on Route 22 she was mistreated at the motel and then abandoned at girlfriend get in Union and she had to call her to come and her because he left with the car? Right. A. All these incidents occurred well the visit before Indiana? Q. A. Well before. These all show this is somewhat of a violent before Q. person person way Indiana? A. he was a violent oh Yes, person, yes. change What was the in his life that he told he had when he came Q. you changed? back from Indiana? What He was thrown out of he school, already beating girls. was thrown out of the he was He was already Army, up getting jobs. changed, fired from What what’s the difference because already meeting he has an unfortunate with his natural mother? questioned by prosecutor Dr. Fox was also about several of Lapidus interrogated, including the incidents on which Dr. shotgun, buying schoolyard defendant’s reason for and the approached youths incident defendant where black with the shotgun in his trousers. Testimony

Character Patinha, defendant, Pamela a friend of testified to defend- good ant’s character and his kindness to her children. On cross-examination, she was asked if defendant told her how he up” girlfriend Suzy, “beat named “carrying gun that he was looking neighborhood,” around for those black kids in the “bought shotgun disputes that he to settle some he had neighborhood.” with some black kids The witness dis- Korski, knowledge claimed of these events. Denise another friend, “thoughtful, caring;” described defendant as on cross- examination she was asked if defendant told her “about the girlfriends.” times he Dorothy beat Defense witness Frank was asked if she knew that defendant was a “beater of wom- en.” general

Joanne in Macavia also testified terms as a character cross-examination, ques- witness for defendant. On she was knowledge tioned about her of defendant’s violent behavior toward women: during girls, Were of the times when he beat Q. you present any up dragged them in the them face, street, the hair over tried to run

punched them over? A. No. Desert them in a motel room?

Q. That never he never laid hand on then. I her Q. happened; Suzy picked girlfriend I was the her up, picked up. above, As noted we confine our discussion here to defend- challenges scope ant’s during of cross-examination penalty phase, to the admissibility during of evidence elicited cross-examination, limiting and to the omission of a instruction concerning past evidence of during defendant’s conduct elicited penalty phase. only We find reversible error in the trial limiting court’s failure to afford the instruction concern- ing the abundant evidence of past defendant’s conduct adduced during cross-examination of defendant’s witnesses. To some concerning extent scope issues of cross-examination will in prosecutorial also be addressed our discussion of misconduct. at 513-519. Infra

(a) Cross-Examination Expert Witnesses customarily Counsel are accorded considerable latitude in the witnesses, subject cross-examination of reasonably to limits imposed by the trial court in the exercise of its sound discretion. (1953). Siegler, State v. 526-27 N.J. Defendant ac- knowledges appropriate prosecutor that it was for the to have expert through tested the conclusions of its witnesses cross-ex- amination focused on factors that formed the basis for their opinions. contends, however, questions

Defendant to Dr. Lapidus emphasizing and Dr. Fox details of defendant’s record school, high army, jail improper were because the experts records were not evidence and the had not relied on Moreover, in formulating opinions. them their defendant as questions posed by prosecutor concerning serts that the subjects exposed allegations these about defendant’s past conduct not otherwise admissible the State in the penalty phase. example prosecutor’s question An cited is the during concerning knowledge cross-examinatiоn of Dr. Fox that defendant jail, extorted meals from inmates while in an allegation prosecutor repeated during that the his summation. object question the and Dr. Fox did not to

Defense counsel knowledge. any denied such doubt, question improper, timely and a was

Without made, only was objection, if should have been sustained. Not opinion subject unrelated Dr. Fox’s or the infor- matter to him, concerning the by no event on which mation reviewed facts and question prosecutor based were in evidence was indicating prove proffer ability no the occurrence. made J., (1974)(Clifford, 302-03 Paglia, v. Di See State N.J. dissenting); (discussing limits on also at 513-519 see infra cross-examination). Similarly, questions relating other to de- service, incarceration, schooling, army asked and fendant’s and objection, neither the materi- answered without were related to experts als reviewed nor based on evidence in the record. concerning limiting Subject to conclusion the need for a our penalty phase, instruction deliberations in the we before may this permitting find that whatever error have occurred capable clearly producing line of cross-examination was not unjust an result. R. 2.T0-2. challenges prosecutor’s

Defendant cross-examina concerning expert tion of the witnesses defendant’s acts of Although physical acknowledging violence toward women. concerning had that information these incidents been reviewed trial, experts prior defendant contends that improper was it conducted cross-examination because was prosecutor’s “wildly exaggerated on based version during experts facts.” Since referred to these incidents both prior testimony, physical their direct the defendant’s assaults Al proper subject on women for cross-examination. though ample objecting defense counsel had basis exaggerated inflammatory interrogation, form of this we questioning objection. note that this also occurred without circumstances, our subject Under conclusion about instruction, limiting any the need conclude error for a we aspect of part on the of the trial court connection with this expert’s cross-examination was harmless. challenges inflammatory the Defendant also as irrelevant and interrogation Lapidus concerning Dr. Dr. Fox of and defend- buying shotgun, schoolyard reason for incident in ant’s looking shotgun Coley which defendant carried the while Hunter, hostility and defendant’s toward and altercations with youths. interrogation pertinent We find this line of black be conclude, subject concerning limiting and to our determination misconduct, prosecutorial instruction and our discussion of specific aspects any errors that occurred on of this cross-exami- nation were harmless.

(b) Cross-examination Character Witnesses of prejudicial Defendant contends that it was error for the prosecutor trial court to have allowed the to cross-examine knowledge concerning character witnesses their of instances of past by conduct not evidenced a criminal conviction. Defendant prosecutor’s interrogation cites the of character witnesses with women, regard to defendant’s acts of violence toward hostility threatening to and encounters with defendant’s black youths examples as of cross-examination in violation of Evi provides: 47. That Rule dence Rule RULE 47. CHARACTER TRAIT AS PROOF OF CONDUCT Subject a trait character offered for the 55, to Rules 48 and purpose drawing inferences as to the conduct of a on a occasion be may person specified (b) (a) in the form of evidence of proved only by: testimony opinion, reputation, (c) evidence of conviction of a crime which tends to the trait. prove Specific subject instances of conduct not of a conviction of a crime shall be proceeding, inadmissible. In a criminal evidence offered of a by prosecution judge trait of character of the defendant on trial be admitted if the may only good has evidence of character offered the defendant. Character admitted by 4. The evidence offered the defendant not be excluded under Rule may testifying not of a character witness on behalf of the defendant may credibility alleged knowledge the defendant’s criminal be an into his impaired by inquiry conduct not evidenced a conviction. penalty phase, Prior the commencement of the the trial motion, granted court defendant’s based on Evidence Rule prosecution impeaching defendant’s char- preclude from by inquiries knowledge acter witnesses into their of misconduct by prior not evidenced criminal convictions. Defendant con- ignored ruling, permitted tends that the trial court its own impeachment of defendant’s character witnesses in violation of Rule. although conclude that ruling

We the trial court’s erroneous, based on Evidence Rule 47 was the trial court did permitting err in not defendant’s character witnesses to be concerning past cross-examined defendant’s conduct not evi Indeed, by prior denced convictions. Evidence Rule 47 ordi narily apply penalty phase would not capital of a case. illustrates, As 1 to the applies Comment rule Evidence Rule when evidence of a trait of a character is offered for the person’s purpose drawing inferences as to the conduct of that on a occasion. person particular * * * The rule deals with the use character trait evidence as circumstan- of proof 46, tial conduct. Rule should not be with Rule which 47 of confused applies actually when a trait character is in issue under the substantive of * ** law this State. evidence of a criminal Thus, defendant’s personal of hearing character which is admissible under Rule 46 at a to determine whether the death should be is not admissible at his penalty imposed ordinarily prior trial for murder unless it is otherwise under Rule 47. permitted [Citations (emphasis added).] omitted Williams, (1983). Accord State v. 93 65 n. 9 N.J. testimony The of defendant’s during character witnesses penalty phase purpose drawing was not offered “for the of inferences as to night conduct” on the of the [defendant’s] Rather, shooting. testimony prove such mitigat was offered to ing c(5)(h), 2C:11-3c(5)(h), factor N.J.S.A. which reads: (h) other factor which is relevant to the defendant’s character or record Any

or the circumstances of the offense. Therefore, governs scope permissi- Evidence Rule of ble cross-examination of defendant’s character witnesses. It provides: When a character or a trait of his character is in it be person’s issue, may in the form of evidence of or

proved by testimony opinion, by reputation, subject, evidence of instances of the specific conduct, however, person’s limitation of Rules 47 and 48. Comment 1 to Evidence Rule 46 observes: against When the State seeks of the death a convicted imposition penalty

murderer character of the defendant is relevant to the determina- personal mitigating tion of the existence of of the circumstances outlined in many N.J.S. * * 2C:11-3c(5) *. Thus, we conclude that evidence of defendant’s character c(5)(h) support mitigating offered to factor may impeached be under specific Evidence Rule evidence of conduct. Our determination support finds further in the section capital punishment governs act that presentation of evidence dur- ing penalty phase: proceeding, establishing At the the State shall have the burden of beyond aggravating

reasonable doubt the existence of factors set any forth para- (4) graph producing of this The subsection. defendant shall have the burden of mitigating (5) paragraph evidence of the existence of factors set forth in of any * * this *. subsection

[********] permitted any and the State shall be to rebut evidence defendant presented by party sentencing proceeding present the other at the and to argument adequacy any as to the evidence establish the existence aggravating mitigating 2C:11-3c(2)(a), (d) (emphasis [N.J.S.A. factor. added).] Although we are satisfied that the use of instances past impeach conduct to good evidence of a defendant’s character is capital punishment consistent with both the statute Evidence, compelling the Rules of there is a need for the supervision trial court to exercise close over such cross-exami State, nation in order prejudice to avoid to the defendant. The penalty phase, proving statutory restricted to aggravating rebutting proof mitigating factors and factors. statutory aggravating Since there is no dependent factor on proof (other prior prior convictions, of bad conduct than murder 2C:11-3c(4)(a)), specific past N.J.S.A. evidence of defendant’s pertinent only mitigating conduct is to the of rebuttal evidence good of character. if jury carefully Even the is instructed on evidence, 503-509, the limited relevance of such there infra danger inflammatory misleading remains a substantial that or past evidence of improperly applied by conduct could be the jury during Thus, its deliberations. a trial court alerted in prosecutor’s interrogate advance to the intention to defendant’s character of witnesses about instances misconduct would be permitted scope

well-advised to rule advance on the of such cross-examination, presence jury. outside the of the Evid.R. 8. challenges inflammatory

Defendаnt also the nature of the prosecutor’s cross-examination of the character witnesses. He argues penalty phase that since the State is limited in the to proving aggravating rebutting mitigat- factors and evidence of factors, ing prosecutor’s repeated references to defendant’s past exposed highly prejudicial allegations conduct to necessarily jury’s Focusing that tainted the deliberations. on provocative accusatory interroga- formulation of the tion, inadequate by defendant contends that limitations the trial prosecutor’s necessarily preju- court on the cross-examination jury’s diced the deliberations. initially

We note the cross-examination of the significant character witnesses occurred without objections Nevertheless, from defense counsel. it is well settled and virtually self-evident that the cross-examination of character by interrogation concerning prior witness acts of misconduct is “pregnant possibilities with prejudice. destructive The mere asking by respected question, official of such a however answered, may suggest well to the imputation that the is Cleary, true.” E. McCormick’s Handbook the Law Evi (2d 1972) (McCormick); dence 191 at 457-58 ed. accord 3A § (Chadbourn Wigmore, 1970). Evidence 988 at 912-21 rev. § possibility prejudice, To limit the the trial court should required proffer by prosecutor have concerning the accu- racy allegations of the referred to in his cross-examination. procedure of choice is outlined Professor McCormick: judge, permitting “The trial it should be believed, before required, prosecuting counsel to cross-examine the character witness on rumors of charges misconduct of the or accused, or upon arrests, convictions, request * * * (in judge give statement the absence of the prosecutor jury) ground that he has reasonable and does that the believe, believe, crimes subject are misconduct, which or which are the rumors, imputed by charges, arrests or were committed and that actually accused,

judgments of conviction about were Reasonable inquired actually pronounced. grounds suggested, would it is assurance be require, prosecutor’s

505 to be who witnesses, credible, the statements of believed purport based on knowledge.” supra, firsthand 458.] have [McCormick, (then Francis, Judge) by Justice point was made The same ¶. Steensen, Division, in 35 writing, Appellate for the State 103, (1955): 108-09 N.J.Super. judge the trial and he has a of the rule is in the hands of The administration * * * being A from abused. protect practice

heavy responsibility high degree obligation rests display very correlative upon prosecutor (citation good embarking such a cross-examination. at 108 faith in [/<£ upon omitted).] (8th States, 216, 222-23 v. 394 A.2d Accord Gross United 1245, denied, 25 L.Ed.2d Cir.1968), 90 S.Ct. cert. U.S. (1970). concerning lack of a conclusion Because of our focusing evidence of defendant’s limiting instruction on the conduct, scope of the not decide whether the past we need itself of character witnesses prosecutor’s cross-examination say that the need for error. Suffice it to constitutes reversible type of this of cross-examina supervision by close trial courts capital particularly cases is acute. tion

(c) Limiting Instruction Omission of sentence should be Defendant contends that his death to instruct the of the trial court’s failure reversed because past con of evidence of defendant’s on the limited relevance cautionary instruc duct, any such asserting that the absence impact testimo prejudicial of this tion undiminished the leaves no such instruction ny. response is that State’s event, argues counsel; any State requested by defense general instructions that the trial court’s adequate. penalty phase were counsel question whether defense need not resolve the

We limiting for a instruction sufficiently request their made clear that on an testimony, although it is self-evident concerning this no cause for importance there should be issue of such critical hold, repeti- in view of the ambiguity. We understatement evidence of defend- highly inflammatory quality of the tive and past ant’s misconduct that jury penalty came before the in the phase, derivatively through guilt phase both the and in the witnesses, cross-examination of penalty phase defendant’s the jury trial court’s failure to instruct the on the limited relevance of this evidence clearly prejudicial was so it requires defendant’s death sentence to be set aside. already

We have reviewed in detail the evidence defend- past ant’s conduct jury exposed to which the was in both the guilt penalty phases and During guilt of the case. phase the jury the apparent heard evidence of racially-tinged defendаnt's purchasing shotgun motivation for the sawed-off as well as evidence of possession defendant’s defiant and threats to use shotgun during the Supra schoolyard the incident. at prosecutor’s motion, 483-487. On the this evidence was before jury penalty phase. the in the

Through expert cross-examination of defendant’s witnesses in penalty phase, jury (or the heard evidence by references prosecutor) concerning past misconduct defendant high school, army, Supra at 496. jail. and in In addition, heard testimony provocative extensive prosecutor references physical defendant’s acts of violence toward Supra at 492— girlfriends. 494; his former expert 497-498. The witnesses interrogated were also about schoolyard incident and buying defendant’s reason for Supra shotgun. 491, 494-496, 498.

Virtually every witness, character other than defendant’s relatives, questioned aggressively prosecutor was by the about tendency defendant’s up” addition, to “beat In women. cross-examination of some character witnesses included refer- ences to prior shotgun. defendant’s misuse of the conduct,

All of this past evidence of defendant’s to the extent all, it was only admissible at was admissible a limited purpose. guilt phase, In the schoolyard evidence of the incident admissible under Evidence Rule 55 to prove absence of accident; all, if admissible at evidence of defend- mistake buying shotgun reason for ant’s was admissible for the purpose. Supra penalty phase, same at 485-490. past evidence of defendant’s conduct was relevant to test the witnesses, expert credibility and the conclusions of the the case of the character witnesses was material to their rebut testimony good to demonstrate defendant’s character as a mitigating factor. any was never told about the limited relevance of Evidence Rule testimony. provides

this as follows: relevant evidence is admissible as When to one for one party purpose judge shall is inadmissible as to other or for another parties purpose, jury accordingly. restrict the evidence to its and instruct proper scope [Emphasis added.] purpose, When evidence is admissible for one but not for another, limiting appropriate through instruction is the device use of such evidence. See v. jury’s State which to restrict the Lair, 388, (1973); N.J. see also United States v. Gil 62 391 liam, 1093, (D.C.Cir.1973)(trial required 484 F. 2d court is * * * sponte, sua give, cautionary to instruction and failure error”); accord Jones v. United sodo constitutes reversible States, (D.C.Cir.1967); McCormick, supra, 385 F.2d 134-36. case, penalty capital jury phase of a the function of the Legislature. jury The must sharply

has been defined proved beyond if determine the State has a reasonable doubt factors, any aggravating if the existence of the defendant proved any mitigating jury the existence of factors. The has weigh only aggravating against only factors must then 2C:11-3c(3). factors. N.J.S.A. mitigating jury per is not mitted, weighing process, other of defend its add evidence past weight assigns aggravating it to the ant’s conduct to factors, past nor to consider other evidence of defendant’s conduct, except mitigating extent offered to to the rebut factors, assigns mitigat- detracting weight as from the it

ing factors.11 case, however, jury totally unguided

In this was concern- put it ing the uses to which could the abundant evidence of past conduct that was adduced at trial. defendant’s We there- jury no confidence did fore have that the not consider such improperly weighing process. in the course of evidence its We way concede that there is no to assure that a adheres scrupulously limiting to the mandate of a instruction. But in a context, penalty death and in the face of such abundant and conduct, inflammatory past evidence of defendant’s the necessi- ty precise limiting for a careful and instruction to this was compelling. charge clear and Its omission preju- from the beyond a compels dicial reasonable doubt and the reversal of defendant’s death sentence.

2. Prosecutorial Misconduct argues County engaged Defendant that the Essex Prosecutor misconduct, pattern “in a the cumulative effect of which was deprive him guarantee of his constitutional of a fair trial at phases Although both acknowledges State [case].” prosecutor may that “the during have made some errors trial,” prosecutor’s course of the it asserts that the conduct “in trial, the context of egregious the entire was not so as to warrant a reversal of either the defendant’s conviction or sentence.” resolving allegation prosecutorial misconduct, an of our difficulty defining

courts have had in no the standards and Supreme 11We note that the United States has Court held that the federal prohibit sentencing phase constitution "does not consideration at the of infor directly statutory aggravating statutory mitigat mation not related to either or ing long factors as as that information is relevant to the character of the Florida, 939, Barclay defendant or the circumstances of the crime." v. U.S. 463 967, 3418, 3433, 1134, (1983). specifical 103 S.Ct. 77 L.Ed.2d Some 1154 states ly permit jury aggravating mitigating consideration of or factors other than 153, 197, Gregg Georgia, those set forth statute. See v. 428 U.S. 96 S.Ct. 2909, 2936, 859, (1976). 49 L.Ed.2d 888

509 prosecutor the of a guidelines that should circumscribe conduct trial; application in questions arise the in a criminal close particular facts of case. The classic and standards to the a prosecutorial is concerning the function often-cited statement States, Berger v. United Mr. 295 Sutherland that Justice 79 L.Ed. 633, 1314, (1935): 55 S.Ct. 78, 88, 629, U.S. 1321 * * * [prosecuting] not of an is the representative ordinary Attorney sovereignty obligation govern a but to to of a whose controversy, party obligation compelling govern at and whose all; is as as its to impartially in a is not that it shall win a but interest, case, criminal therefore, prosecution justice done. As he is in a definite sense such, very that shall be peculiar guilt aim of which that shall not law, the servant of the twofold escape vigor he He with earnestness indeed, innocence suffer. may prosecute — not at to strike do while he strike hard he is But, blows, should so. may liberty from methods calculated ones. It is as much to refrain foul duty improper legitimate bring wrongful is to use means to conviction as it produce every just about one. degree, average jury, greater in a or less has It is fair to say prosecuting obligations, which so rest confidence that these plainly upon suggestions, improper will be observed. attorney, faithfully Consequently, knowledge are to carry assertions of and, apt insinuations, especially, personal weight against none. much the accused when should they properly carry prejudicial prosecutors has so When the conduct been trial, deny has reversed accused him a fair this Court an as Farrell, v. remanded for a new trial. See State convictions and Welsch, v. State (1959); 61 N.J. State v. N.J. (1972); 99 29 152 Landeros, West, 20 N.J. 69 v. (1955), State (1959); N.J. 29 327 L.Ed. 1486 1025, (1956); cert. 351 U.S. S.Ct. denied, 100 v. D’Ippolito, (1955). State N.J. prosecutori- address the issue recently

We had occasion to Rams- case, State v. capital in the of a al misconduct context eur, supra, Ramseur 106 N.J. Our observations 319-24. we the conduct of backdrop against which review provide the prosecutor in this case: misconduct in this fact that however, prosecutor’s We stress, prejudiced no excuses it. defendant way case be said to have cannot future, Court cases on notice that in this Prosecutors in are hereby capital violations of the refer on motion possible special will not hesitate to its own governing ethics committee district ethical rules prosecutors appropriate legal We aware that within the profession action. are well disciplinary vigorously calling in law the state’s interest double represent prosecutor’s —to is treated time assure that the accused fairly enforcement and at the same help challenging. challenge justice That is what is done —is and that uniquely such a difficult one and such an honorable one. makes the mission prosecutor’s willing engage in conduct to obtain a conviction to A proscribed prosecutor he scoff at oath in both its Not does only case respects. capital betrays justice, the state Because death is than seek he also poorly. rather represents find this Court of will more sanction, readily harsh necessity uniquely prejudice resulting than in other from misconduct in a case prosecutorial capital who fail to take their particularly criminal matters; seriously prosecutors strongly postponing, stringent obligations and cases thus risk ethical capital jeopardizing, enforcement of the law. We are confident that our even challenge, but we also stand to will be to this ethical ready prosecutors equal [Id. to abuses. 323-24.] take whatever action required remedy any prosecutorial Although multiple cites instances of defendant sentence, warranting reversal of the death we misconduct as most discussion to the conduct that we consider limit our likely prejudicial to defend- egregious and most to have been right ant’s to a fair trial.

(a). Responsible Telling Jury It Was Not for

Deciding Death of Defendant opening penalty in the In the course of his statement following statements to the phase, prosecutor made jury: job job job here is not to execute. Your sentence, Your here is not to your job on the is not kill Your here is to follow the law and based here to anybody. intelligent weighing reasonable is to facts that find to exist your process you over does what the law has return that verdict. The law then takes for, penalty. provided going let let to kill Don’t Don’t tell anybody you you’re anybody. going for a life because to be person’s anybody say you’re responsible juror You of office to serve as a and well and truly try not. took an oath

you’re going according the law and that’s what to this case to the evidence and you’re lives. It’s to do. It’s not lives or take any up you up you spare any and the law will take facts and render a verdict consistent with those facts find the law is in over, place. executing taking life. You’re not You are not not anybody, you’re anyone’s gentlemen, killing one killer in this ladies and room, there’s anybody, only who murdered in this room. killed, there’s one who only person Thank attention. you your object prosecutor’s remarks

Defense counsel did not given by judge. the trial no curative instruction was Also, direct examination of Pamela during defense counsel’s presence of Patinha, following exchange place took in the the jury: is to be for what he did. You know that Teddy punished Q. ‍‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌‍A. Yes. going jury is to determine what is? You know that this punishment Q. object, jury going I Honor. That’s not what is MR. SCHNEIDER: your going jury The is to find facts.

to determine. finding determine what the result of the fact will Well, THE COURT: process be. will penalty right. MR. That’s SCHNEIDER: jury I’ve instructed them. THE knows that. COURT: already

I’ll permit question. 2633, 320, 105 86 Mississippi, v. 472 US. S.Ct. Caldwell (1985), penalty in a death trial prosecutor 231 L.Ed.2d during jury that the should not assume that argued summation died, since “the to determine whether defendant lived it had Supreme you automatically is reviewable decision render 2637-38, 325-26, 105 at at at 86 L.Ed.2d Court.” 472 U.S. S.Ct. Supreme and the jury sentenced defendant to death 237. The evenly by an divid Mississippi affirmed the conviction Court reversed, holding Supreme Court ed court. The United States impermissible to rest a death sen “constitutionally it is has led made a sentencer who been tence on a determination determining appropri responsibility for that the believe at death rests elsewhere.” Id. ateness of the defendant’s 2639-40, 328-29, 86 L.Ed.2d at 239. S.Ct. Ramseur, we observed that this issue in where

We dealt with jury left the with the jury may instruction have supplemental sentenc- responsible for the decision impression “that it was not death;” rather, jurors’] “that task ing defendant to [the i.e., aggravating weighing, finding the finding and simply fact weighing v. then them.” State mitigating factors and Ramseur, Accordingly, we ruled supra, 106 N.J. at 315. reversible error be- instruction constituted supplemental this concerning jury its sentenc- capacity to mislead the cause of its ing function: determining aggravating mitigating But whether factors "merely” striking jury exist and a balance between them, decides whether defendant jury die. In shall live or no other determination in the criminal law is the more to act as the conscience of the In no other truly determination community. is the criminal law it more to make certain the important absolutely not aware, its but of its total simply consequences actions, responsibili judgment. for the As the United States ty Court has made Supreme recently instructions cases should never clear, lead the sentencer capital determining believe that responsibility of defendant’s appropriateness Mississippi, death rests elsewhere. Caldwell v. U.S. 105 S.Ct. 2633, (1985). 86 L.Ed.2d 231 This command flows from the that the death premise can be if the assures penalty constitutionally imposed only procedure reliability “ in the determination that ‘death is the in a appropriate punishment specific ” Id. S. Ct. at (quoting case.’ at 105 Woodson v. 323, 2637, 86 L.Ed.2d at 236 Carolina, supra,

North 961). at U.S. 428 S.Ct. 96 at 305, 2991, 49 L.Ed.2d at Under New death this Court held that Jersey’s prior penalty statute, any jury’s passing instruction that to dilute the sense of “tend[s] on responsibility Mount, the issue of life or death” is erroneous. State v. 30 N.J. 214 195, (1959); Hipplewith, (1960). accord State v. N.J. 300, 319-20 It is apparent sentencing that this rule should with force under the current apply equal capital and that the trial scheme, court’s instructions here violated this rule and hence prejudicial constituted error. [Id. 316.] Drake, People Accord v. 1237, (Colo.1988); 748 P.2d State Clark, v. 862, (La.1986); 492 So.2d Commonwealth v. 870-71 Baker, 511 A.2d (Pa.1986) 787-91 prosecutor’s

We note that to some extent may remarks have charge been offset the trial court’s to the in the sentencing phase, which referred on several occasions to the jury’s fact that deliberations could result the death penalty: gentlemen, Ladies and as know at this time must you now decide what you is to be on the defendant

penalty Rose for his conviction on the imposed Teddy charge. murder ^[********] * * * The defendant must be sentenced to death if are satisfied you beyond aggravating

reasonable doubt that at least one factor exists and are you aggravating further convinced a reasonable doubt that the factor or beyond outweigh mitigating factors factor or factors which find any you present.

******** convincing the State has the Now, burden a reasonable doubt you beyond aggravating that an factor exists. If аre not so convinced, the defendant you to not receive the death will be sentenced death —I’m will penalty sorry, eligibility will be sentenced to life with no for 30 prison parole years. are stated the defendant be to death if Now, may put only you specifically, aggravating a reasonable doubt that an factor or factors convinced beyond aggravating doubt that exist and further convinced reasonable beyond outweigh mitigating or factor or factors which find. factor factors any you the State establish a reasonable doubt sum, burden upon beyond aggravating or factors and that has that an factor are the State present aggravating a reasonable doubt that the factor or factors established beyond outweigh mitigating for the death to be factor factors in order any penalty imposed. jurors’ verdict sheet contained the most Significantly, the deciding jury’s responsibility explicit reference page The last defendant should be executed. whether following sheet, signed by juror, each contained the verdict legend: A DOUBT THE BEYOND REASONABLE THAT

ARE YOU CONVINCED FACTOR(S) FACTOR(S)? THE MITIGATING OUTWEIGH AGGRAVATING jurors defendant be sentenced death. All "YES”, If answer is shall your agree in order for to be death is the verdict death must only appropriate verdict. your charge court’s Although thrust of the trial the combined supersede probably sufficient the verdict sheet were “Your improper suggestion to the prosecutor’s highly sentence, not your job here is to execute job here is the not * * ** *,” we cannot be is to the law job *. Your here follow statement did not impact prosecutor’s confident that the the any jury. of of member affect deliberations constituting patently incorrect highly improper, remarks were attempt jury’s to dilute sense of law and an statement Just as it is sentencing its function. responsibility for matters law improper prosecutor misrepresent for (2d ed. Criminal Justice § court, 3-2.8 ABA Standards see New Standards”); 1980) (hereinafter “ABA referred as cf 3.3(a) (hereinafter re- Conduct Jersey Rules Professional (1) knowingly make a ”) (“A lawyer not “RPC to as shall ferred 514 tribunal.”),

false statement of material fact or law to a so is it improper prosecutor knowingly for the jury. to mislead the Cf. Standards, 3-5.8, comment, (2d ABA supra, 1980) (“Ref- ed. § authorities, erences the likelihood that other such as the governor courts, appellate or the will correct an erroneous impermissible conviction are efforts to lead jury to shirk responsibility decision”). for its Id. at 3.90.

Nor prosecutor’s does the fact that the statements to jury Supreme antedated the Court’s decision in Caldwell v. Missis sippi, supra, and our decision in impro Ramseur diminish the priety of such prior comments. Under our penalty death stat ute any we held that instruction that to dilute the “tend[s] jury’s sense responsibility passing on the issue of life or Mount, death” is erroneous. 195, (1959); State v. 30 N.J. 214 300, Hipplewith, accord State v. (1960). 33 N.J. 319-20 Other state courts that prior considered the issue to Caldwell v. Mississippi, supra, reached the same conclusion. State v. Willie, 1019, (La.1982); 410 So. 2d 1035 Gilbert, State v. 258 890, (S.C.1979); S.E .2d 894 State, 690, Hawes v. 273 S.C. 240 833, (1977); Hines, S.E.2d 377, State v. 286 N.C. 211 S.E.2d 201, (1975); State, Pait v. (Fla.1959). So. 2d 385-86 We are constrained to prosecutor’s conclude that the remarks to knowingly misleading. were The statement not corrected the trial court nor was the instructed to disregard prosecutor’s Despite remarks. clarifying content of the charge sheet, trial court’s and the verdict we cannot conclude that so inaccurate a characterization of the jury’s sentencing cases, capital urged role in on jury by chief law-enforcement official of Essex County, preju did not right dice defendant’s to a fair trial.

(b). Prosecutor’s Cross-Examination

During Penalty Phase multiplicity Defendant cites a during of instances cross-exam- ination of penalty defense witnesses in the phase that he prosecutorial contends constitute misconduct of mag- sufficient require of death sentence. nitude to reversal the defendant’s improper every example allegedly cross-examina- Virtually error, plain since asserted tion is as defense counsel few raised prosecutor’s interrogation of defense objections to the wit- frequent are in record instanc- Indisputably, nesses. there this prosecutor, questioning in while a witness about a es which cross-examination, proper subject of took extreme liberties in reports in paraphrasing facts in evidence but reflected not Thus, questioning Lapidus Dr. by experts. reviewed history relationships in his with about defendant’s violence women, during her subject a addressed the witness direct prosecutor questions objec- asked testimony, the these without tion: beating up, pulling it all he’s them he’s their hairs Doesn’t start because Q. car, them, punching dragging trying

and run them with the them the to over face, throwing trays ash them? at A. No that’s— beating Taking locking up in a room them them to motel and them Q. sоmething deserting you them Don’t think that would have to do there. relationship going with to be terminated? the fact that opinion challenging Lapidus’s Dr. that defend- Similarly, problems from his failed reunion with ant’s emanated emotional shooting, prosecutor, prior his mother a few months again objection, asked: without years you or at the fact he 3 before that least What do think about that Q. girl catastrophe, punched

years in the face that he before that Indiana way? of show that he Doesn’t sort she didn’t want to do it became you you long that? Did Did know had attitude before he went Indiana? this girlfriends punched in the of his face? know fact that he had one [Emphasis added.] noted, phrase she prosecutor’s As “because previously way” appears do be a deliberate didn’t want it his entry in the records corresponding distortion of the Center, quote defendant as Irvington Mental which Health supra my way?” things do See asking “Why doesn’t she 493 n. 9. cited examples but numerous

These are illustrative allegedly objection, prosecutor, in which without defendant 516 exaggerated

used characterizations of facts not in the record in cross-examining offensive, witnesses. We find the tactic and one amply vigorous warranted objection by defense coun or, sponte, sel sua by However, intervention the trial court. matters such as ordinarily these must be by resolved process, adversarial through timely objection proper rul ings by the trial court. We are aware that criminal trials * * * “charged atmosphere create a frequently makes it [that] arduous for the prosecuting attorney stay within the orbit of propriety.” Bucanis, strict 45, 56, State v. 26 N.J. cert. de nied, 910, 357 U.S. (1958). S.Ct. L.Ed.2d 1160 We painstakingly have examined the concerning record the instanc alleged improprieties es of prosecutor in cross-examining Except defense witnesses. specific for the instance of miscon refer, duct to which we now we are unable to conclude that the prosecutor’s cross-examination witnesses, of defense even though at times improper, prejudicial was so deny as to defend right ant his to a fair trial. Lapidus

Cross-Examination of Dr. Concerning Statement of Nicholas Silva previously noted, As during guilt phase of the case prosecutor attempted evidence, to introduce into through the testimony Palermo, of Paul defendant’s actions and state ments in the course schoolyard of the incident. After defense objected, counsel requested trial court proof. an offer of prosecutor The incident, described the which apparently con cluded with pointing defendant shotgun at three or four youths black schoolyard stating “I should blow their fucking heads off.” evidence, The trial court excluded the ruling that its relevance “substantially was outweighed by a prejudicial effect.” Subsequently, during direct examination of Nicholas Silva in guilt phase, prosecutor when the attempt permitted ed and was to elicit concerning evidence an earlier portion incident, of the schoolyard prosecutor requested and explicit received confirmation from the trial ruling court of its previously statement described exclude evidence n. 10. supra at 495 prosecutor. See Dr. Nevertheless, during Lapidus, the cross-examination the witness about prosecutor questioning point when the behavior, prosecutor propensity for violent defendant’s had Silva’s Lapidus Dr. that she read Nicholas ascertained from formulating opinion defendant’s before an about statement Dr. prosecutor then asked mental and emotional condition. page Silva’s jury to to the the second of Nicholas Lapidus read (cid:127) by de- police. objection Without Irvington the statement to aloud, exposing counsel, Lapidus read statement Dr. the fense inadmis- very testimony to the trial court had ruled jury the the during guilt phase. supra the See on two occasions sible the reading statement to When she had finished the 495-496. had prosecutor Lapidus Dr. to confirm that she jury, the asked forming opinion in de- her about considered statement Silva’s fendant. record, the appears the on of it

Based our review the requesting Lapidus Dr. to read prosecutor’s purpose in sole expose jury the to evidence jury was to Silva statement 4. under Rule previously to inadmissible Evidence ruled be the misconduct on highly improper and constitutes This was prosecutor. prosecutor’s conduct violated Stan- part of the Standards, supra, provides: which 3-5.6(b) dard of ABA knowingly for a the purpose is conduct for prosecutor It unprofessional judge bringing or to offer to the attention inadmissible matter objectionable legally or make other imper- ask evidence, questions, inadmissible judge jury. arguments in the comments or presence missible of dеfend- the evidence only did the hear consider Not statement, state- prosecutor referred to defendant’s ant’s closing jury. during argument to the his ment on two occasions in this prosecutor’s misconduct We cannot conclude that instances instance, cumulatively the other weighed with did during penalty phase, conduct that occurred improper right a fair trial. prejudice defendant’s to not (c). Prosecutor’s Summation prosecutor expected A in vigor a criminal case is make to closing argument ous and forceful jury. As Justice in State DiPaglia, v. 64 N.J. Clifford observed his dissent (1974): charged proceedings. Criminal trials are A not emotionally prosecutor to conduct himself a manner to a lecture hall. He is expected appropriate graphic jury, long entitled to forceful and be his summation to the so he as confines to fair himself comments on the evidence presented. Nevertheless, points during at several his summation in the case, penalty phase prosecutor of this crossed line that separates impermissible closing argument. forceful from

1. During argument closing defense counsel’s to the jury, he expert presented referred testimony by the defense during penalty phase, emphasizing it had not been by response, rebutted the State. the prosecutor during his summation stated: His motives some of a expressed mind, some you type type depravity of mind. He knew at the time he was interviewed these doctors what They defense what the was, was, law what he faced. The doctors knew that. explained with, lawyers, being charged were the law the to what as he’s penalty provides what he and how he could beat the that the law faced him and gave came in here and as counsel said uncontradicted an they they Judge charge good the Well, will their as the

opinion. is as you opinion only wrong facts which base their and some of the were upon facts and they opinion some of the facts were nonexistent. The basis for their is weak; weak the whole opinion foundation, extremely cards fall. Shall I in here to contradict them? I an experts would consider that parade intelligence. weight insult to I believe the that can with to be your you cope given get to these we witnesses. should have to into a battle of the expert Why might bring of the battle able to in experts, have been psychiatrists? They bring thing, ten more to the same find could ten in say them somewhere. / say opposite the right where we come back to we come back to you people, you people. [Emphasis added.] prosecutor’s clearly improper

The were in comments respects. First, two suggesting experts that the were told by the lawyers the penalty “how he could beat that the law * * * gave an in here and they him and came for provides testimony expert’s the implied that prosecutor the opinion,” defense contrived, assistance of with the or fabricated was prosecu- for the support in the record There was no counsel. they qualified, and well experts The were both innuendo. tor’s jury opinions. their the basis for carefully explained one of the part, finding that testimony at least accepted their testimony supported had been their mitigating factors two record, the adequate foundation the an Without proved. testimony con- expert was that the implication prosecutor’s DiPaglia, supra, v. See State totally unwarranted. trived J., dissenting). (Clifford, 64 N.J. at 299-300 that he could Moreover, statement prosecutor’s differently from the testify experts to produced “ten” have to the suggested It improper. also experts was defense experts, qualified were other that there it could assume witnesses, produced as prosecutor but not known experts. See defendant’s opinion contradict would (“It con Standards, 3-5.8(a). unprofessional supra, is ABA § * * * to mislead intentionally prosecutor duct for 3-5.8(b) (“It draw.”), may inferences it § as to the express per prosecutor conduct for unprofessional any testimo falsity or to the truth opinion as sonal belief defendant.”) ny of

2. prosecu during his summation occasions On several to death defendant jury to sentence encouraged the tor scope of matters outside on focusing jury’s attention empha point prosecutor one example, For the record. committing from defendant preventing importance of sized the acts of violence: future one life; true, you any can Teddy’s one you spare Counsel says any this of a type to let sympathy this wants case, your to bail out of

wants overwhelm the evidence to the contrary facts and the overwhelm the person life. law can spare Teddy’s doing will have done that? You have to do who What around you by Teddy be, rage the future. When his next will it's on in whether knows what prison many years going against street now or whether it’s in as he's a from psychiatrist, prison, visitor, against against or a in a doctor social worker inmate, against you’ll another that’s a chance have to take. [Emphasis added.] summation, points prosecutor At in his other exhorted the impose penalty message” to to death order “send a community: to the calling what I’m When That’s now to do. hand on the upon you you put your give Bible and took that oath to follow the and you laws fair treatment and as evidence State as well the defense, honest, reasonable, decision, proper finding weighing fact and and did that. You process became you part greatest justice criminal in the That’s what world. now. system part you’re why you today going message. Everybody here That’s what do to send a County, everybody you going that lives in this that in this lives State and ’re message you going say place; to a ’re send and to the law is in that we live by laws;

these some these die laws. fortunately, people [Emphasis added.] prosecutor repeated The argument this toward end of summation: tragic thing It’s been terrible terrible, that Garaffa. happened Anthony again. It can happen message everybody community, You must send a out to outside in this county, did, you're going remember, it, this to do what he think about if you you’re thinking have when seconds about it. Let them know 3b happens bb you’re going out there what to do it. Let them that know if paid

penalty has to be the ultimate crime. go think twice. twice they’ll think before even Maybe Maybe they’ll they buy gun the damn with it and threaten others with practice it. [Emphasis added.] Ramseur, supra, v. State 123, N.J. we condemned as improper prosecutor suggesting statements the jury impose penalty protect should the death order society “in id. at 321. crime,” There, prosecutor from argued: gentlemen, are made for laws our and in this ladies case, we protection must realize that it is our who has here no responsibility protect everybody interest this case and to there in the out culture of Essex protect everybody from the cruel, horrible, inhumane acts murder. [Ibid.] County We concluded improperly such statements “divert juror’s attention from the facts of Id. case before them.” accord v. Wainwright, 322; Darden 168, 477 U.S. 178-79, 106 S.Ct. 2464, 2471, (1986) (comments 91 L.Ed.2d 156-57

521 only guarantee penalty death would be the implying “that the improper). undoubtedly future similar act” were against a Standards, disapproved by the ABA arguments are also Such 3-5.8(d): supra, § argument jury which would divert the should refrain from The prosecutor injecting issues broader the case on the evidence, from its to decide by duty controlling guilt the law, or innocence of the accused under by

than the jury’s making of the verdict. of the consequences predictions 1, 30, 1038, 105 Young, v. U.S. S.Ct. United States Cf. 1, (1985) (Brennan, J., concurring part in 84 L.Ed.2d (“Similarly, prosecutor’s the admonition dissenting part) and if ‘doing your job jurors’ they as jurors would not be that the excusable, as the Court acquit was neither invited nor voted to warnings such Many historically courts have viewed concedes. among egregious most forms ‘doing your job’ as the about not (Citations omitted)). misconduct.” prosecutorial in order to defendant to death By urging jury the to sentence message” and to “send a him future acts of violence deter from in the will result society conduct such as defendant’s to jury’s arguments focused the penalty, prosecutor’s the death miti- aggravating and matters extraneous attention on Legislature to channel gating established factors capital case. penalty phase of a in the jury’s deliberations future would commit that defendant Neither the likelihood sentencing to death society from nor the benefit to crimes among aggravating capital murders persons convicted emotional force Act. The set forth factors jury that the significant risk arguments posed a prosecutor’s pun- determine defendant’s duty from its be diverted would the trial with accordance on the evidence ishment based were im- statements that these charge. We conclude court’s proceeding. penalty-phase prejudiced defendant’s proper 3. prosecu- method which already have addressed

We during the made comment put defendant’s tor before incident, schoolyard shotgun pointing group while at Supra youths: fucking their black “I should blow heads off.” 494-496, prosecutor 516-517. The referred this statement during twice his summation. addition, prosecutor represented jail

defendant’s records revealed that defendant “extorted food from other inmates since been in representa- he’s there.” That tion, completely unsupported by any trial, evidence at occurred during of portion prosecutor’s closing this the argument: questioning Xwas Remember when Doctor Fox when he was unaware of the of violence school history where Rose had attacked a Teddy teacher and students? He of attacked wasn’t aware that and as I that he pointed out, wasn’t shown that. wasn’t he shown Why that? wasn’t he shown the Why jail fought jail records? wasn’t he the army shown records where he with Why

guards, extorted from food other inmates since been in he's there? fact, only during the reference the trial to defendant’s alleged Fox, extortion food from inmates occurred when Dr. having been prosecutor asked the if defendant had told him extorting inmates, meals any about from denied such knowl- edge. objected prosecutor’s Defense counsel to the reference during court, erroneously, summation. The trial overruled the objection. prosecutor’s plainly improper, statement was it since was not on any evidence adduced at trial. See based Standards, supra, ABA 3-5.8(a): (“The prosecutor may ar- § gue all reasonable inferences from in the evidence record. It is unprofessional prosecutor conduct for the to intentionally mis- the state evidence or the jury mislead as to the inferences it * * * draw.”); RPC 3.4 may (“A lawyer (e) trial, shall not * * * any allude to matter supported by that will not be evidence.”). admissible

4. Finally, on two occasions in the course summation prosecutor’s argument constituted an inaccurate assertion “the penalty that law” mandated the death for defendant. He stated: called as know to determine whether or not You will then be upon you any mitigating factors exist. The last word will be Whatever I to yours. say you conveying of the State, here is a to comments today way you expression logic and reason of a certain decision but have the last on the evidence, you going You have the last that are whether or is,

word. say; you people say anything, not our laws mean whether or not the that are out there people out know there, streets whether there will be Roses Teddy they anymore unjustified, if commit the ultimate crime cold blooded inexcusable, you because that’s what the law going ultimate murder, you’re pay price it, you says, not I it or want because that’s what the because want because oath, law states and we took an we swore on the Bible. added.] [Emphasis closing argument, Similarly, very at the conclusion of his prosecutor impose penalty exhorted the the death be- required by cause it was “law”: going know in minds and in hearts that what to do is You your your you’re right thing. something anything It’s have no choice. It’s not you really going going voting against that’s to be difficult to live with. It’s to be your law, voting against that’s what voting against conscience, evidence, you give anybody you you give to do him the break wouldn’t else. have if here, gentlemen. cry The law cries out a verdict ladies and I don’t for for law, cry it. demand it. The it. We the citizens that out We follow place; guts law is in have the and the heart and the mind to it so that follow keep justice country this we can our in this State foundation of trouble, deep you we’re in a whole lot trouble unless can show otherwise you guts us have the to do what has to be done. [Emphasis added.] misleading jury. to the

Such statements were inaccurate and aware, capital prosecutor undoubtedly As the was well punishment penalty the death statute does not mandate murder, capital leaving appropriate the determination of the and penalty jury weighing aggravating on its of based mitigating prosecutor’s suggestion that the death factors. The required by highly inappropriate. penalty was law was persuades the record us that unlike Our review of Ramseur, effect of prosecutorial in the cumulative misconduct during opening prosecutorial improprieties committed phase in the closing arguments penalty in the of trial and prejudicial Lapidus substantially were cross-examination of Dr. right to a fair trial. deprived defendant of his constitutional capital setting penalty phase of a highly In the emotional case, multiple cannot conclude that violations murder we prevailing prosecutorial standards of impact conduct had no on jury’s repeat this deliberations. again We our in admonition prosecutors Ramseur that determined to enforce the may, law zeal, in unwittingly their be the instrument of its obstruction: Because death is a harsh sanction, this Court of will uniquely more necessity prejudice resulting find from readily misconduct in a prosecutorial case capital than in other criminal matters; who fail to take prosecutors their seriously stringent obligations strongly ethical cases thus particularly risk capital postponing jeopardizing, and even the enforcement of the law. N.J. [106 324.] Accordingly, we prosecutor’s conclude that the misconduct during penalty phase requires the reversal оf defendant’s death sentence.

3. Counting Double Aggravating Factors

Defendant contends that the submission to the statutory two aggravating factors underly based on the same ing evidence constituted a violation of right his constitutional factors, a fair trial. The two both found to have proved beyond doubt, been a reasonable were those set forth 2C:11-3c(4)(f) (“The N.J.S.A. murder was committed for the purpose escaping detection, trial, apprehension, punishment or confinement for another offense committed the defendant another;”) 2C:11-3c(4)(h)(“The or and N.J.S.A. defendant mur servant, public 2C:27-1, dered a as defined in while the victim engaged performance duties, of his official servant.”). because of the public victim’s status as a trial, Before defense counsel aggravating moved to dismiss c4(h) (murder servant), factor public of a contending that it was based on the supported same evidence that aggravating factor c4(f) (murder escape apprehension). The trial court ruled cumulative, the factors necessarily were not reserving final question decision on the penalty phase. for the motion was prior renewed penalty the commencement of the phase and denied. The trial court concluded that the two aggravating factors were legislative distinct and that the intent

525 permit sup- was to submission of both factors to the if ported by the evidence. amicus, General, Attorney and the State as contend that c4(f) overlap, observing two factors do not factor c4(h)

relates to the defendant’s motive and factor relates to the They rely status of the victim. on a series of cases from other upholding states analagous aggra combined submission of State, vating 553, in capital cases. Collier v. factors 244 Ga. (Ga.1979), denied, S.E.2d cert. 946, 261 364 U.S. S.Ct. 445 100 Jenkins, 1346, (1986); 63 L.Ed.2d 781 v. State 15 Ohio 3d St. 164, (Ohio 1984), 473 N.E.2d 264 cert. denied sub nom. v. Scott Ohio, 1032, 3514, U.S. S.Ct. 87 L.Ed.2d 643 (1987); 472 105 State, 563, Calhoun v. 297 Md. 468 A. 2d 45 (Md.1983), cert. denied sub nom. Tichnell Maryland, 993, v. U.S. S.Ct. 466 104 Hutchins, 2374, (1984); L.Ed.2d State v. 321, 80 846 303 N.C. (N.C.1981), 279 S.E.2d 788 cert. denied sub nom. Hutchins v. Garrison, 1065, 750, U.S. S.Ct. 79 L.Ed.2d 207 (1984). 464 104 aggravat

Defendant contends that consideration of two ing factors on based identical evidence enhances the likelihood arbitrary imposition sentence, thereby of the death subvert ing aggravating “guide[ the function of factors to and ] focus[ ] jury’s objective particularized consideration of the circum stances of the individual offense and the individual offender death,” v. impose quoting before it can a sentence of Jurek Texas, 262, 273-74, 2950, 2957-58, U.S. 49 L.Ed.2d 428 96 S.Ct. Harris, 929, (1976). People v. 939-40 Defendant relies on 36 36, 782, 433, denied, Cal.3d P.2d cert. Cal.Rptr. 201 679 469 965, 365, (1984), U.S. L.Ed.2d principle 105 S.Ct. 301 multiple aggravating factors based on the same conduct sentencing phase punish cannot be used at the to determine ment: objective focusing mandated on the [t]he constitutionally particularized

circumstances of the crime and the defendant is undercut when the defendant’s charging overlapping conduct inflated artificially multiple special circumstances or circumstances based on an indivisible course multiple special having Cal.3d of conduct one criminal at 62, P.2d principal purpose. [36 Cal.Rptr. at 798.] 526 II, recently Bey this issue in 112 N.J. addressed State v.

We (1988). There, robbery, of 123, defendant was convicted 174 assault, felony sexual and murder. Defendant aggravated support the to argued that evidence of sexual assault was used (“The aggravating c(4)(g) factor offense was committed both * * * in the of engaged while defendant was commission the * * * * * ("The *.”), c(4)(c) and murder sexual assault factor torture, mind, battery an to depravity aggravated of involved victim.”). the Bey II we reversed death sentence on the grounds, definitively did not the issue con- other and resolve cerning counting double of the evidence of sexual assault. However, sought capital punishment our act we noted that jury’s the comply with constitutional mandate that the discre- suitably and so as minimize tion “be directed limited the risk action,” capricious (quoting wholly arbitrary of and id. at 175 153, 189, 2909, 2932, Georgia, 96 Gregg v. 428 US. 49 S.Ct. (1976)), such 883 and that direction must be L.Ed.2d objective compel provided by sentencing jury standards that the particularized “to focus on the circumstances of the crime and (quoting Gregg Georgia, supra, at 175 the defendant.” Id. v. L.Ed.2,d 859, 153, 199, 2909, 2937, 889). 49 96 S.Ct. U.S.

Thus, Bey stated in II that we is to allow the same resolution the to use evidence appropriate prosecution provided aggravating trial court seeking to factors, prove multiple compare jury simply aggravat- not advises the that it should the number of against mitigating factors, considering ing it is the number that factors once, cognizant it should be the same more than double facts counting aggravating against mitigating when it balances factors. aggravat-

This result to consider the evidence relevant to each permits giving weight ing it undue to the factors should from number prevent aggravat- one conduct factors when defendant’s multiple aspect supports II, supra, Bеy (emphasis added).] v. N.J. [Stole ing factors. 176-177 given jury in There was no such instruction this Hence, against weighing aggravating factors case. factors, incorrectly perceived its mitigating may have homicide, weigh- duty to the evidence be double-count ing the evidence once in concluding that defendant murdered escape Officer Garaffa to apprehension for his posses- unlawful shotgun, sion of the and a concluding second time in defendant public murdered a servant while the victim was performing his official II, duties. As noted in Bey it is not improper prosecution for the prove to aggravat- more than one ing evidence, factor based on the same provided the is carefully weighing instructed that the aggravating factors against mitigating factors, assign it does not weight inordinate to the support multiple facts that factors. The absence of such clarifying instruction in this compels case us to conclude that the concerning instructions weighing the aggravating of factors inadequate, were thereby impermissibly prejudicing de- right fendant’s to a fair mandating trial and reversal of the death sentence. itWas Error the Trial Court to Aggravat Submit

4. for c(4)(c) ing Factor Jury? to the Over objection defendant’s asserted prior before trial and to the commencement of penalty phase,12 the the trial court sub- declaring 12Defense aggravating counsel moved before trial an for order c(4)(c) factor unconstitutional on its face. The trial court denied this motion. hearing, particulars relating At this same defendant moved bill for a of to this factor, asking prosecutor specify alleged that the which of defendant's acts torture, mind, depravity aggravated battery constituted of or an to the victim. motion, observing any The trial court also denied this that "there shouldn’t be question, upon they're relying presence as to the facts which to show the of aggravating (4)(C)." factor argued inapplicability c(4)(c) aggravating Defense counsel then of factor discovery provided by based acknowledging on the thus far the State. While possibility may present that there be no basis to the factor the time the penalty phase, point case reached the the court determined that "at this showing proof clearly lacking defendant has not met a burden of to factors,” support presence aggravating (citing McCrary, of these State v. (1984)). N.J. 132 prior penalty phase, Just to the commencement of the defense counsel c(4)(c), aggravating contending moved to strike factor that no evidence was presented applicability in the case that would indicate the of this factor. The during sentencing jury’s deliber for the consideration its mitted forth in N.J.S.A. 2C.11- aggravating factor set ations 3c(4)(c), reads: which vile, wantonly outrageously or or inhuman in that it The murder was horrible torture, aggravated battery depravity mind victim. or an involved jury prior sentencing to its

The trial court instructed the concerning aggravating this elements deliberations factor: following you may aggravat- purposes For of this case consider whether the ing exist: factors vile, First, outrageously wantonly murder or horrible or inhuman in torture, depravity aggravated battery of mind or an it involved victim. vile, course, every Although, may be murder viewed as horrible or inhuman, aggravating respect every purpose- factor exist this does not with knowing killing. ful or you present you aggravating find this must be order factor beyond upon convinced a reasonable doubt that the defendant inflicted bodily agonizing mental death. term victim brutal and harm before depravity mind mental which murderer to means that state leads a torture aggravated battery upon committing an the victim before the crime of commit murder. Now, bodily aggravated battery means serious harm to the victim. Such aggravated battery bodily person must A harm occur before death. commits bodily depriving purposely by of a when he causes harm to another him body by body by rendering member member of his or of his useless or disfiguring body seriously part or a thereof. Now, charged purposefully meaning previously same as the has the definition you guilt trial; repeat phase going you. of the I’m not to at the to it for bodily bodily injury; injury I used serious that term can be defined as which permanent disfigure- or creates substantial risk of death which causes serious bodily organ. injuries protracted any or ment or loss of member The need not permanent, nevertheless, they superfi- rather be but must be substantial than cial. Now, battery By aggravated must occur before death. I mean aggravated battery victim; not be the of the of the it must must cause death independent prior occur to the and be of the cause of death. death subjected Torture occurs when a victim is to serious or mental abuse before concerned, aggravated battery only and

death. Insofar as and torture are acts motion, justifying citing trial evidence this “the court denied this as factor officer, area, weapon pointed manner in which the the stomach used, type weapon pellets the number of involved.” [and] of a that was occurring determining conducts to death be considered in whether prior may aggravating this factor is present. Although jury determined that the State did not sustain proving its aggravating (4)(c), burden of the existence of factor defendant contends that its submission to the was reversi- penalty phase. ble error argues, Defendant further Ckristener, on State v. relying (1976), N.J. jury’s that the discharge duty c(4)(c) of its may to consider factor have result- in “compromise” ed verdict jury’s reflected determina- tion that the State had sustained proving its burden of two factors, aggravating c(4)(f) c(4)(h). other The State con- c(4)(c) tends that the trial court properly submitted factor to the jury, erroneous, but even if that determination was it constitut- ed harmless error since the found that the existence of the factor had proved. not been Ramseur, supra, State v. 106 N.J. we acknowl

edged the in applying provision difficulties inherent this of our Capital Punishment Act: c(4)(c) Section of the Act is its most troublesome and one of its most portion vagueness. is troublesome because of its obvious

important. provision quoting it is the best of that fact. The Merely proof provision important vagueness because this wish to limit the probably accurately expresses society’s death certain murderers and reflects penalty only yet society’s inability (footnote omitted).] define that limit. at 198 {Id. precisely explained alsoWe introductory indefiniteness of the c(4)(c) language compelled Legislature’s us to focus on the qualifying language construing the statute: language (“[t]he Quite murder was clearly introductory provision outrageously inhuman”) vile, horrible or is indefinite wantonly bey<?nd recognized Legisla- was so anyone’s ability remedy, presumably limiting which attached to that ture, of the section the part explicitly portion “in that it involved aggravated or an torture, mind, depravity battery * * added). (Emphasis through-

victim *.” various courts Interpretations by give construing out the nation effect to this the entire limitation, ultimately by being in a manner that results in the second the essential provision portion finding. although findings In these courts do two effect, require independent (that (1) “outrageously the offense or horrible or vile, wantonly inhuman,” (2) aggravated battery), applying involves or the torture, depravity nugatory. the construction, first of the is rendered The resultant part provision aggravating construction is that the factor exists when the murder “involved aggravated an to the N.J. of or victim.” torture, mind, battery [106 depravity (citations omitted).] at 199 Ramseur we c(4)(c) in adopted narrowing of construction standards, concluding satisfy order to constitutional that the Legisla- mind focus on defendant’s state of was the true the ture’s intent: legislative We are that the essence of the concern is the defend- convinced Legislature ant’s state mind. We do not that the intended to of believe distinguish murderers intended to between two each of whom inflict immediate suffering without when one whatsoever, death the victim additional upon any long for a of time and dies and the other lives period experi-

victim immediately excruciating That would ences event alone be as an capricious pain. perceived imposing insufficient which to that basis on inflict death on defendant while other. Our of criminal laws is on the system predicated usually imprisonment on the defendant’s our of based on the intent. imposition Indeed, punishment degree ranking crimes crimes with inten- Code's of those committed places highest degree tional the for which the is most crime, conduct as of defendant Legisla- the concern, concern, severely punished. Society’s community’s ture’s most to harm, is to those who intend inflict concern, punish harshly pain, suffering intending addition to death. N.J. [106 207-08.] —in Ramseur Finally, paraphrased appro- we essence of an c(4)(c): jury priate charge to the on factor depending jury charged on the should be facts, Therefore, —without quoting aggravating this exists if the the statute —that factor murder involved aggravated of or an to the victim. Torture or torture, mind, battery depravity aggravated the victim if the to shall be ‍‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌‍found defendant intended battery psychological suffering cause, and did in fact severe or or cause, physical pain to the victim to the victim’s measured either death, “severity” prior or a of the or duration of combination of both. intensity pain, pain, greed, revenge, Where the murder was not the of or another product envy, those emotions associated with and served no murder, оrdinarily purpose killing, jury defendant shall the court instruct the on the beyond pleasure meaning of in this For the killed for context. defendant who depravity specific enjoyment just to be in because victim or for no it, area, happened just reason at able to reserve extreme all, kill, must be its most society sanction. N.J. at [106 211.] c(4)(c), charge jury It is that the trial evident court's on Ramseur, prior delivered to our decision in was erroneous. charge instruct it must did not determine that physical pain suffering defendant to cause intended severe prior properly the victim to death. did the trial Nor court finding requires depravity proof inform the that a “served purpose beyond murder no for the defendant his pleasure killing.” of at 211. Id.

We also that the conclude evidence adduced trial at did c(4)(c) support not of submission factor to jury, even assuming its accompanied submission by proper was a instruction. Aside from evidence that defendant had fired the shotgun knowledgeable was and its capacity about to inflict devastating injury, proof was there no that defendant’s inten tion was to cause pain Officer Garaffa to suffering, endure and rather to kill Although than him. argues the State that a shotgun abdomen, fired at the rather than at a more vital organ, likely pain death, to suffering prior result in and to this fact cannot prove alone be sufficient to defendant’s inten tion pain to inflict severe suffering prior to As we death. noted in Ramseur: Legislature distinguish We do not believe that intended between two

murderers of whom each intended to inflict immediate death victim upon suffering without additional when one victim dies any whatsoever, immediately long excruciating lives for the other a of time and period experiences pain. [Id. at 207.] proofs support c(4)(c) did the Nor the submission of depravity on basis that the murder involved mind. produced There was evidence at trial that the defendant shotgun had a propensity youths to use the to threaten black neighborhood. only concerning But the evidence defend for shooting ant’s motive Officer was Garaffa defendant’s own indicating panicked he statement and did not want to be caught shotgun. apparently accepted with The State de murder, explanation fendant’s of his reason by for the submit ting c(4)(f), jury proof aggravating factor “The murder * * * purpose for the of escaping apprehension committed * * * * * for another offense committed the defendant a sentencing factor found exist its deliberations. Ramseur, depravity As we held in mind characterizes “those distinguished who purpose meaning murder without as from purpose unjusti- those murder for a (although completely who trial, however, at 209. evidence purpose).” fied Id. escape Officer Garaffa to detec- indicates that defendant shot shotgun, possession sawed-off and the tion for unlawful by acknowledged purpose defendant’s its submission of State c(4)(f) jury. to the Under the circumstanc- aggravating factor c(4)(c) es, aspect focusing “depravity factor on of mind” that of jury. not have been submitted to the should Christener, 55, supra, on v. 71 N.J. at Defendant relies State improper jury the for the contention that the submission to of c(4)(c) ground independent constitutes an aggravating factor Christener, case. reversing for the death sentence in this the with whom estranged the victim was the husband of woman in a There defendant resided mobile home. was substantial strength temper. of and physical evidence the victim’s violent murder the into the The occurred after victim broke mobile early morning, ignored home and defendant’s demands that one lunging estranged he leave. He was shot while toward murder, charged second-degree jury, on first- and wife. self-defense, others, manslaughter, and of de- defense found conviction, guilty manslaughter. fendant of We reversed the concluding plain it was error the court to have that for trial murder, 69, charged degree the id. and jury on first prejudicial jury’s manslaughter error since the such was verdict might compromise by have a verdict induced the errone- been charge. Relying in holding ous at 69-70. on our Christen- Id. er, argues jury the to the defendant erroneous submission c(4)(c)may aggravating “compro- factor have resulted in a of finding in two jury mise” existence of the other aggravating relied on factors State. grounds reversing independent exist defend-

Since there sentence, definitively not resolve ant’s death we need now aggravating of question improper whether the submission an penalty phase capital in of case jury factor to the necessarily We constitutes reversible error. noted State v. Thomas, (1978), that our decision Christener N.J. i.e., “overcharging” jury, of prejudicial focused on the effect instructing it on a crime more than serious the evidence war- rants, where may compromise the result induce a verdict. mutually Unlike exclusive choices first-degree between manslaughter Christener, and murder available to the jury’s phase the penalty capital function in of a case is first assess, other, independently sufficiency of each proof aggravating mitigating of the and rejection factors. Its one compels such factor neither nor inhibits its determination that another factor exists. We also note on this record that there proof overwhelming aggravating existence c(4)(f) c(4)(h). Hence, factors it highly speculative would be to conclude that the erroneous submission aggra- c(4)(c), vating rejected by factor a factor jury, prejudicially jury’s affected this concerning remaining ag- deliberations factors, gravating factors, the mitigating its weighing process.

5. Was it Error the Trial Court to Have Admitted for

Into Tape Recording, Evidence the Police Articles of the an Clothing, Autopsy Photograph? Victim’s and Defendant contends that the trial court’s admission of certain physical during trial, guilt phase evidence the the of and in phase motion, penalty prosecutor’s on the violated the New Jersey Rules of right Evidence and defendant’s to a fair trial. challenged police tape The evidence consists of a of recording Irvington from police dispatcher transmissions to and the be- Garaffa, shooting fore and after Officer autopsy the of an photograph body of Officer Garaffa’s that reveals the of site entry the the wound and location the incisions made in the University emergency surgery Hospital, course the at and the tattered and and blood-stained shirt undershirt worn Officer Garaffa he when was shot. police tape recording played jury,

The was for the without objection, during guilt phase of trial while Officer Kenneth Irvington police Yerzal testified. Officer Verzal was the dis- patcher shooting on night and identified voices heard minutes. He testified that span of about ten tape over a

on Eighth, Garaffa p.m. August on Officer approximately 11:48 on 40th stating: 2’s off police headquarters, called in to “[Car] understood the trans- Street, bag.” Officer Verzal guy with a leaving was his vehicle to mean that Officer Garaffa mission approximately testified that The officer question someone. police radio he heard “cries” over thirty-four seconds later emergency when he assistance subsequently called and tape had been shot. The records that Officer Garaffa learned emergen- seeking crying-out, the transmissions Garaffa Officer aid, After Venzal the sound of ambulances. Officer cy testified, recording into evidence without tape was admitted admitted, guilt-phase with the other evi- objection, and also played tape dence, phase. prosecutor penalty in the jury during his summation. again for the recording not tape that the was Defendant contends Moreover, argues he that the any fact in issue. probative utterances, garbled combined with the screams and officer’s aid, highly inflammato seeking emergency were transmissions danger prejudice of undue ry to “create substantial and served 4. misleading jury.” Evid.R. confusing the issues or recording relevant argues tape was The State elapsed approximately thirty-four seconds demonstrate that alighted Garaffa from vehicle between the time Officer contradicting contention that the shooting, defendant’s thus panic. shooting impulsive and resulted from tape recording, and its on our review of the Based guilt phase, we find no abuse objection at the admission without excluding the evidence trial court in not of discretion Moreover, 4. guilt phase sponte under Evidence Rule the sua any penalty- of the although recording the was not material as a issues, penalty phase in the occurred phase its admission simultaneously course, objection, and also without matter of any that We are satisfied guilt-phase the other evidence. with recording in the admitting tape the error that occurred penalty phase was beyond harmless reasonable doubt. R. 2:10-2.

The trial court’s autopsy photograph admission of the oc- curred in context of photographs the the State’s offer of five body. the victim’s Three photographs, apparently of the which depicted aspects victim, various of the sustained by wounds the by ground they were excluded the trial court on the that were inflammatory prejudice jury. and could the autopsy Another photograph objection counsel, was admitted without defense depicted entry since it the site of the wound. Defense counsel objected S-36, photograph contending to the admission of that entry the site of already the wound had been established prior photograph. admission of the autopsy The trial court disagreed, entry and admitted S-36 because it the showed upper wound relation to the victim’s torso. us, argues photograph grue-

Before defendant that the was inflammatory some and and therefore should have exclud- been photo- ed under 4. State Evidence Rule The asserts that the graph prove entry was relevant to location the of the wound and, c(4)(c), aggravating prove connection with factor extent injury. of the victim’s

Similarly, argues defendant that trial court’s admission objection over defense counsel’s of Officer Garaffa’s blood- error, prejudicial stained undershirt and shirt constituted as- serting clothing that solely articles victim’s were offered highly inflammatory. for “shock value” were The State clothing contends admissible was show shotgun fired, “near body contact” with victim’s when citing testimony Salvato, from Irvington Police Officer who had performed various tests to determine the distance between shotgun firing. the victim at the instant of The trial court clothing injury admitted into “to evidence show what the was and extent of caused injury to him.” general admissibility photo rule is that “the graphs of victim of rests in a crime the discretion of the court, trial and the exercise discretion of its will not be reversed palpable in Thompson, supra, the absence of abuse.” State v. 420; (“the may judge 59 N.J. at see also Evid.R. in his probative discretion exclude evidence if he finds that its value is substantially outweighed by the risk that its admission will * * * (b) danger prejudice create a substantial of undue or of confusing misleading balance, jury”). the issues or On we that the trial court should conclude have excluded the second autograph, in autopsy capacity view of its to create undue prejudice, entry already and since the site of the wound had through However, photograph. been established another plainly guilt phase harmless in error was in view of the overwhelming guilt. already evidence of defendant’s We have determined that it was error for the trial court to submit c(4)(c) aggravating factor to the penalty phase; hence, autopsy photograph the second was not admissible to c(4)(c). prove any of the elements of factor respect We reach the same conclusion with clothing. admission of the victim’s articles of The State’s concerning the shotgun evidence distance between the and the body require victim’s did not admission of Officer Garaffa’s evidence, blood-stained shirt and undershirt into and this evi capacity prejudice dence had a clear to inflame jury. Thus, it should have been excluded under 4. Evidence Rule However, compelling guilt, view evidence of we are fully satisfied that the error clearly capable produc was not ing unjust an result. R. 2:10-2.

6. it Error the Trial Was Court to Permit Rebuttal Mitigating c(5)(f) by Factor Subject Conduct not the

a Prior Criminal Conviction?

Prior to the commencement of penalty phase, de sought ruling fense counsel from the trial court that would State, rebutting mitigating restricted the have evidence of (“The c(5)(f) significant history prior factor defendant has no activity”), proof prior criminal of the defendant’s criminal convictions. The trial court denied the motion: going going I’m not to rule at this whether I’m Obviously point permit going evidence of rebuttal the Prosecutor because I’m not into a vacuum and going I’m not what come before me. anticipate may *$$***$* Legislature wording It also mitigating seems to me the has in the provided significant that the factor, defendant has no namely, of criminal history prior don’t criminal activity. They say convictions, prior they say activity. Activity is different from conviction. If the defense is allowed to state evidence simply significant

that he has no of criminal particularly history prior activity knowledge Prosecutor has of criminal activities, it would seem to me prior it going would be unfair to the State to them from into acts of prevent prior subject criminal not the matter of criminal activity conviction and for that reason I will motion number 6. deny Again I will have to rule on it as it arises on each issue. Judge, I understand [Defense Counsel] that, but I also understand the general ruling mitigating thrust of the Court’s to be that the factor F is not limited to convictions. prior wording. THE COURT: I don’t think it is based on its Judge, ruling if [Defense that's the Court’s I will Counsel]: advise the Court mitigating and the Prosecutor now that we in fact withdraw this may factor and we will advise both the Court and the Prosecutor tomorrow. Based on the trial court’s refusal to restrict the State’s evidence in mitigating c(5)(f) rebuttal of solely prior factor criminal defendant, convictions of defense counsel advised the trial court that it was “withdrawing” mitigating c(5)(f). factor Defendant contends that the trial ruling court’s constituted reversible error in penalty phase, since it improperly deprived defend- right ant of prove mitigating this jury. factor to thе We find no error in the trial ruling. Although court’s noth ing legislative in history Capital of the Punishment Act Legislature’s intent, illuminates the we sig attach substantial plain nificance to the meaning of the words used to define c(5)(f). factor Township See Levin v. Parsippany-Troy Hills, 174, (1980). N.J. 82 Legislature’s 182 use of the 2C:11-3c(4)(a) word “convicted” in N.J.S.A. suggests its choice “activity” defining c(5)(f) of the word factor deliberate. argues Code,

Defendant that the drafters of the Model Penal c(5)(f), mitigating the source of “signifi- factor used the term distinguish history prior activity” criminal in order to cant prior from extensive records serious convictions records of or remote convictions. Model Penal 210.6(4)(a) Code § trivial (1986 ed.). proposed In the comments to the first official draft Code, origi- explained change the drafters from the nally language history of “the defendant has no submitted prior activity” present language criminal as follows: “significant” (4)(a) has been inserted

The word before Subsection “history” order to meet the concern some Institute members lest trivial expressed by any law-abiding and remote conviction bar consideration of an otherwise life as a mitigating (Proposed Penal Code factor. 210.6 comment [Model Official § 1962) (emphasis added).] Draft question Most courts that considered the have have held that mitigating may this factor be rebutted evidence of criminal activity necessarily subject not of a criminal conviction. Wainwright, See Funchess v. (11th Cir.1985), F.2d denied, cert. 1031, 1242, U.S. S.Ct. 475 106 89 349 L.Ed.2d Harris, (1986); F.Supp. v. 451, (E.D.N.Y. 540 471 Barfield State, 1982), aff’d, 719 F.2d 58 v. (4th Cir.1983); Smith 407 894, cert. (Fla.1982), denied, 984, U.S. S.Ct. So.2d 901 456 102 State, 2260, (1982); Washington L.Ed.2d v. 72 864 362 So.2d 658, (Fla.1978), denied, 937, 2063, cert. U.S. 99 S.Ct. 666 441 60 Simants, (1979); 549, 567, State v. 197 Neb. 666 L.Ed.2d 250 881, (1977), denied, 878, 231, N.W.2d cert. U.S. 892 434 98 S.Ct. Gladden, 54 L.Ed.2d 158 v. (1977); 398, 435, State N.C. 315 340 673, (1986), denied, 871, 241, cert. U.S. S.Ct. S.E.2d 696 479 107 Noland, (1986); 1, 93 L.Ed.2d 166 v. 21, State N.C. 312 320 642, (1984), cert. denied, 1230, U.S. S.Ct. S.E.2d 654 469 105 Matson, 1232, (1985); 41, v. 2d State S. W. 84 L.Ed.2d 369 666 44 (Tenn.1984), denied, 225, cert. 469 U.S. 105 S.Ct. 83 L.Ed. State, 2d 154 (1984). (Ala.1978) But Cook v. 369 So.2d 1251 cf. (requiring proof analogous of criminal conviction to rebut miti State, statute); Dragovich v. gating factor under Alabama 492 (Fla.1986) (testimony So.2d 350 that defendant was called “The reputation Torch” and had as arsonist held insufficient activity). constitute evidence of criminal prudently court must that a trial It is self-evident proof neces determining quality the its discretion exercise history prior criminal activi “significant sary to constitute c(5)(f). In mitigating factor this ty” as evidence rebuttal to rule on the expressed its intention case the trial court issue,” but did not have “as it arises on each evidence c(5)(f) withdrew factor to do so because defendant opportunity error in the trial jury. We find no from consideration ruling. court’s any Mitigating Circumstances Jury Weigh Must

7. Disprove? Failed to State charge court requested that the trial Defendant mitigating any if believable evidence of jury that there were doubt, disproved by beyond a reasonable factor not State mitigating factor exists. required to find that the declined, instructing jury instead that it The trial court has shown that the only be that the defendant “need satisfied likely not.” De mitigating factor is more than existence of a charge was error. the trial court’s fendant contends (1988), Zola, considered this we State v. N.J. jury’s determination of concluded that question and “[t]he mitigating factors is the matters in evidence constitute whether at 438. We adhere to qualitative judgment.” Id. result of a Thus, defend or not the State rebuts principle. whether factor, if decide mitigating must still proof of a ant’s existence of to establish the evidence is sufficient defendant’s court’s error in the trial mitigating We find no factor. instruction. Jury with Failure to Provide the Trial Court’s

8. Did Factors Mitigating Explanations More Detailed Rights? Deprive Constitutional Defendant instruc plain error the trial court’s raises as Defendant mitigating factors relied on concerning the jury tion to defendant. Defendant contends that the court’s instruction essentially reading consisted of a statutory language, consequently supply and failed jury adequate with in- structions on which to base its deliberations. recently

We had occasion to general consider this issue in II, Bey supra, State v. general and we guidelines reiterate the opinion: set forth that requirement capital sentencing preclude must not consideration of mitigating explanation relevant circumstances would be hollow without an mitigate imposition Otherwise, penalty. how the evidence can of the death subject arbitrary capricious court would the defendant to the risk of an and * * *

jury Act, determination. recognized Even before the enactment of the we “Appropriate proper charges and are essential for a fair trial” and that charges explain jury “should to the in an understandable fashion its * * * legal sum, function in relation to the issues involved.” In it is the trial duty juror meaning court’s to assure that a reasonable will understand the mitigating function of factors. at the time of the interpretation, the catch-all Similar deficiencies in either the For stances extenuating those factors was not to court should have made сlear that the * * * failing the Act example, on the ^[********] surrounding With to tell the mitigating guilt generally facts the court mitigating respect * * * offense, regarding appear sentencing proceedings, jury and instructions that the murder that would factors merely are factor, justify that it could consider all in the § inadequate. c(5)(a); intoxication, c(5)(d); age, the defendant’s life or character or the circum- general read the words of the statute when pertaining or excuse defendant’s § charge concerning specific mitigating c(5)(h). function of attempt [M to defendant’s emotional disturbance merely repeat Jurors are untrained in justify at 169-170 charge to establish the existence of § mitigating mitigating a sentence less than death. conduct, that test. failed to meet verbatim the (citations evidence adduced factors, but to § charging c(5)(c); omitted).] language statutory the trial factors. present Zola, Accord supra, State v. 112 N.J. at 430-431. remand,

On the trial court should conform its instructions concerning mitigating factors to the standards set forth in Bey II.

9. Jury Required Should the Have Been Specifically to Appropriate

Find that Death was the Punishment? objects Defendant to the trial court’s refusal to instruct that it should sentence only defendant to death if the jury “unanimously only appropriate believes that death is the above, punishment.” jury As noted form verdict contained language virtually requested charge. identical to Supra at Nevertheless, Zola, 513. as we supra, observed in v. State at “no accompany jury’s N.J. incantation had to death, provided sentence of that the court’s instructions have imparted to the obligation its to make the normative judgment fitting appropriate that death was ‘the punish- ” Ibid, ment for the offense before (quoting them.’ v. State Ramseur, 80). supra, 106 Accordingly, N.J. 316 n. the trial give requested court’s refusal to charge was not error. 10. Did the Trial Court’s to Bar Irv- Refusal Uniformed

ington Police During the Courtroom Officers from Penalty Phase Right Violate to a Fair Defendant’s Trial? case, penalty phase

Prior to the commencement of the presence defense counsel noted Irvington of nine or ten courtroom, police in the objecting they officers to the fact that ground were in uniform on the that their intent was “to send a message jury.” responded by ruling The trial court that here,” right observing “the officers have a “I to be that don’t they believe I can tell them how to dress when come court.” prejudicial ruling. We find no error the court’s Nevertheless, guidance, emphasize for future we that a trial paramount responsibility presiding court’s over a criminal proceedings fairly trial is to assure that the are conducted end, impartially by jury. that a verdict is rendered To that discretionary powers may a court has broad that be exercised to might protect pressures from extraneous affect proper discharge duty. appropriate of its circum sworn stances, power might by imposing properly be exercised officers, police limitations on the dress of or correction emblems, prohibiting display of buttons or other proscriptions necessary preserve atmosphere decorum and an impartiality in the courtroom. approval Supreme

We note with the observation 567, in McNaught, Court of Kansas State v. 238 Kan. 713 P.2d (Kan.1986), 457 a vehicular homicide case in which defendant allegedly driving specta while intoxicated and numerous present wearing tors in court were buttons inscribed MADD (Mothers (Students Against Driving) Drunk Against and SADD Driving): Drunk justice, judge charged In the administration of the trial with the preserva- justice tion of order in his court and with the to see that is not obstructed duty large A whatsoever. measure of discretion resides in by any person persons the trial court in this its exercise will not be disturbed on respect, appeal prejudice legal right. unless it resulted from the denial of a One appears jurisprudence of the ideals of criminal is that a defendant is entitled to a trial in judicial being a calm minimize of a decision atmosphere, any possibility logical rendered on or emotion rather than on the facts and speculation reasoning. On the decorum of the occasions, however, has been courtroom determining disturbed demonstrations such in occasions, On by spectators. whether or not a defendant a trial, was denied fair the decision of whether

jury was or could have been influenced is one which is left possibly necessarily to the sound discretion of the trial the exercise of which will not court, be prejudice disturbed unless it resulted from the disturbance. appears [238 Kan. at 577, 713 PM at 466.] Alvarez, (11th Cir.1985), United States v. 755 F.2d 830 cert. Cf. denied, States, 905, Hernandez v. 474 United U.S. 106 S.Ct. 274, (1985)(in involving charges 88 L.Ed.2d 235 trial of murder Alcohol, agents and assault of of Bureau of Firearms and (BATF), Tobacco trial court did not its abuse discretion in permitting agents BATF that testified to remain in сourtroom during closing arguments); State, (Fla.1986), v. 24 Woods So.2d denied, 446, rt. 479 U.S. 93 L.Ed.2d 394 S.Ct. ce (1986)(upholding refusing trial court’s exercise of in discretion courtroom). guards to bar uniformed correction from context, involving challenge presence a related troopers security purposes, uniformed state in court for Court, Supreme United reversing States the First Circuit Court of Appeals, reinstated a Rhode robbery Island armed conviction upheld permitting the trial court’s exercise of discretion in however, observations, troopers’ presence. Court’s super- trial highlight our concern that courts exercise effective dealing in with such issues: visory discretion the threat of uniformed and armed We do not minimize that a roomful receiving might to a defendant’s chances of a fair trial. See policemen pose 15-3.1(c) (2d 1980). ABA Standards for Criminal Justice ed. But we simply prejudice in the of four such find an risk of spectacle cannot unacceptable sitting in row section. Even officers the first of a courtroom’s spectator quietly jurors that the was not common had the been aware troopers deployment use of we cannot believe that the the four Island, Rhode troopers practice guilt.” tended to brand their "with an unmistakable mark eyes respondent * * * might is not whether been our task here to determine it have However, have measures feasible for State to less employed conspicuous security might we courtroom. in our While, capacity, express prefer supervisory providing in federal not be ence that officers courtroom courts easily security reviewing jurors guards, as we are much more constrained when identifiable by challenge proceeding. All a constitutional to a state-court federal court may a jurors in a is look at the to and determine do such situation scene presented prejudicial as to what saw was so an pose unacceptable whether inherently they challenged right to fair is not found threat to defendant’s a if the trial; practice prejudicial prejudice, the if the fails to show actual defendant inherently v. is over. has failed his burden here. [Holbrook to carry inquiry Respondent Flynn, 475 U.S. S.Ct. L.Ed.2d 89 536-37 525, 570-71 1340, 1346-47,] 560, [106 (1986) (footnotes omitted).] record, of the do not find an abuse Based on our review of we grant court in to defendant’s discretion the trial its refusal Irvington police officers from request to exclude uniformed observing phase proceedings. In the event penalty the the phase, trial court penalty on retrial of the the the issue recurs in the of our its context carefully should consider resolution opinion. observations in this Jury to Did Trial Court’s Failure Instruct

11. Penalty Sympathy Role in its Concerning the his Consti- Deprive Phase Deliberations Defendant Rights? tutional give fol requested the trial court

Defendant that sympathy charge jury clarify to relevance of lowing compassion penalty phase deliberations: in its 544 aggravating outweigh mitigating Even if find that factors you factors, sentencing as the still determine fairness and you body may mercy unjust. sentence of death would be or can be taken Any sympathy compassion coming into consideration decision as to a Thus by you your penalty. only if believe that death is the would you unanimously only appropriate punishment return such verdict.

you charge The trial court jury requested. declined to as In its instructions, briefly the trial court jury summarized for the mitigating attempted prove. each of the factors defendant c(5)(h), Concerning jury factor the Court instructed the that it “required anything concerning consider the defendant’s particular life and characteristics and the circumstances of the you crime for which guilty.” charge have found him Unlike Ramseur, the court’s jury instruction to the did not direct jury deliberations, sympathy exclude from its but simply any compassion, omitted mention of mercy, sympa- or thy. charge Defendant claims the constituted reversible error. Ramseur, 123, supra, State v. we held N.J. that an instruction that the “should decide the case on the evidence ” * * * bias, any prejudice without sympathy did not violate rights, citing Brown, defendant’s constitutional v. California 538, 837, (1987). U.S. S.Ct. 93 L.Ed.2d 934 Id. 106 N.J. 296-99. We noted that the instruction the trial court in preclude Ramseur “did not considering possi from all mitigating sympathy ble circumstances and such as those cir might inspire,” cumstances id. at cautioning nevertheless against general against the use of a admonition if “sympathy” particular in a might permissible case it “conflict with the role sympathy specifically engendered by any mitigating factor.” Recently, II, 171, in Bey supra, Ibid. v. 112 State N.J. at we upheld a capital trial court’s refusal to direct a case to “[a]ny consider sympathy compassion proffered] or which [the * * mitigating may engender circumstances id. at 171. We find in give no error the trial court’s refusal requested chаrge. The significantly court’s instruction was more sympathy charge neutral on the issue of than the we approved Ramseur, in and did not inhibit the from consid-

545 may engendered by extent it have ering sympathy been proved by defendant. mitigating factors Failing Trial Err in to Instruct 12. Did the Court Presumption is Entitled to a Jury that Defendant Penalty? The Death Against 13, supra, In we held Biegenwald, v. N.J. State Act, “in Capital under the Punishment that in all cases tried prove penalty imposed, to be the State must order for the death aggravating out doubt that the factors beyond a reasonable mitigating factors.” Id. at 67. The trial court’s weigh the in charge fully in adhered to the standard set forth this case Act, Capital in the Punishment Biegenwald. We find no basis law, state constitutional any principle in of federal or to be require approved Biegenwald the instruction would to a that the defendant is entitled supplemented by a statement against penalty. No such instruction “presumption” the death find error in the trial requested of the trial court. We no charge. a statement from its court’s omission of such Right to a the Trial Violate 13. Did Court Defendant’s Opportunity by Failing Him the Fair Trial Afford Mercy Jury Personally and Plead to Address the Being Subject to Cross-Examination? Without testify penalty in the elected to In this case defendant He invokes as subjected to cross-examination. phase and was him “the common failure to accord plain error the trial court’s allocation, right of a defendant ‘to right the ancient law mitigation. The most plea present to the sentencer as speak for a defendant persuasive may counsel not be able him halting eloquence, speak for might, with the defendant ” (quoting Zola, at 428 Green v. supra, N.J. self.’ State v. 655, 301, 304, 653, States, 5 L.Ed.2d 81 S.Ct. 365 U.S. United J., (1961) (Frankfurter, plurality opinion)). right of allocution is set forth that the Zola we observed 3:21-4(b) provides: our Rules of Court. Rule imposing Before the court shall sentence, address the defendant personally ask him if he wishes to make a statement in his own behalf and to present any mitigation information in of The defendant punishment. answer may personal- ly by attorney. No such appears reference in the rule governing sentencing cases. R. 3:21-4A. hearings capital in Zola, supra, State v. We held in that there was no federal or state constitutional mandate capital that a defendant be accord- right ed the N.J. at 430. of allocution. 112 Nevertheless, we determined right that such a recognized, should be pro- on a basis, spective based on our supervisory jurisdiction over crimi- nal trials: argument We do not base our on State or Federal Constitutions and would right grounds not find the absence of the to reverse a trial conducted capital ruling to this date. We make our in prior the exercise of our supervisory jurisdiction over criminal trials in New Hence, we Jersey. future, shall right of a permit narrowly-defined defendant to capital make a brief mitigation unsworn statement at the close of the presentation evidence in the Before a penalty defendant he shall phase. be instruct- speaks, jury, ed the court, outside of the by of the of the presence limited scope right; subject that his statement to the court’s and that should supervision; go the statement subject the boundaries beyond he will be permitted to including corrective action the court either comment the court or reopening or in some cases prosecutor possible the case for cross-examina- tion. We shall suggest our committee on cases to request capital any necessary to assist sentencing. might trial courts in this procedures It aspect capital be useful for a court to examine in advance of the defendant’s a written speech outline of the statement. At proposed we shall stand any rate, ready ruling reconsider this if dictates that experience allocution creates more prob-

lems than it solves. [7d. 431-432.] Accordingly, since defendant’s trial occurred before our deci- Zola, sion in no error resulted from the trial court’s failure to right afford defendant the of allocution. In the event of retrial penalty proceeding, right of allocution shall be available defendant opinion accordance with our in Zola. Must be Accorded the Right to Make the 14. Defendant Opening

Initial Statement and Final Summation During Penalty Phase?

Defendant prejudicial contends that it was error for the trial court request have denied his up to sum after asserting right penalty phase, in the that the prosecution closing argument accorded to final should have been give the life of fundamental fairness since his was him as a matter Ramseur, supra, State v. issue in dealt with this stake. We 81, rejected the contention now advanced 106 N.J. at 318 n. II, supra, 112 Bey v. N.J. at 183. defendant. Accord Statе Bey II. Ramseur expressed to the views We adhere argues imposed sentence on Finally, defendant that the death excessive, and is manifestly inappropriate and defendant is of similar that of other defendants convicted disproportionate to matter, disposition of this we do not crimes. In view of our these contentions. address affirmed as are the other convic-

The conviction of murder is and the matter re- The sentence of death reversed tions. resentencing. capital manded to the Law Division for J., CLIFFORD, concurring. prosecutor’s that the excesses agree

I with Justice Handler case most guilt phase were his summation on offensive, I would not hesitate egregious, such that sometimes for that reason alone guilt conviction to vote to reverse of a deprived conduct defendant I to conclude that that were Koedatich, (1988) v. N.J. fair trial. See State however, was, prosecu J., (Clifford, dissenting). Bad as it inconsequential on the largely performance was rendered tor’s acknowledgement of defense ready question guilt by knowing guilty of his client was counsel in his summation that purposeful murder. or up the time of the summation shaped

Here is how the case the defense’s counsel that guilt: the court had informed on manslaughter would be aggravated request charge for a on disposition of (I majority’s favorable denied. concur with disagreement on disagrees. That ruling. Handler Justice the heart of our manslaughter” issue is at “aggravated conduct, point. I this, prosecutorial on divergence of views I right on the former —as Handler were that if Justice concede persuasively set forth not, reasons so for all the think he is latter.) right be on the opinion he would the Court’s —then convict of Therefore, open to the were to only options strength of acquit. The murder or to knowing purposeful not mount defense counsel could such that case was the State’s and therefore chose not acquittal, argument respectable that would run the risk silly argument kind of some present wisely, (probably instead jurors, and decided irritating summation as a unsuccessfully) guilt-phase to treat the albeit purpose transpar- plea. His penalty-phase “dry run” of jurors acquittal rather to condition gain an but ently not subsequent proceeding in which he was to come: for what penalty. That imposition the death against of argue would transcript defense the of when one examines clear becomes summation, portions of which pertinent guilt-phase counsel’s follow: to a defense is is the time when attorney supposed a summation Normally during to consider that he would like your to certain facts you you emphasize argument his to to that make an to you try persuade you and deliberations going charges against guilty him. I’m not to do the her client is not of client or you Teddy try persuade going that Rose isn’t to to that. At least I’m not guilty.

guilty he because is Teddy and there is Rose killed earlier, As Mr. Marucci said Officer Garaffa disputed Teddy Rose has disputing it. We have never no that evidence. disputed it. He doesn’t seek never He doesn’t seek to deceive to deceive you. try to He doesn't anything regarding what happened. or anyone misrepresent responsibility his actions. avoid for finding guilty are. You know that a You know what the consequences go penalty phase knowing where the purposeful to a murder us to or forces years imprisonment at least without with SO are either alternatives life parole penalty. or the death that, us to concede it and it’s It’s him to admit for difficult difficult for only options it, accept perhaps you accept the available those will be to to for you and this is to Rose killed a man that Teddy but it’s also difficult to accept to I would like to you in evidence which emphasize true but there are facts during things you keep important in mind to certain because I think it’s for may deliberations, your your be. deliberations however short ^[********] just knew that he was shooting Rose in seconds because Teddy

The happened illegal gun having gun, he knew was get which that about to arrested just kill a this one we he didn’t decide to for him to have and know cop, a officer and kill him or scour the Rose didn’t stalk else. Teddy police anyone going looking Rose was home. We Teddy for this officer. particular police city Rose do? He car what did Teddy know when this pulled up particular police killing officer is what’s You wave at a officer if that police waved. don’t police Killing not on Rose’s mind. That on mind. Officer Garaffa was Teddy your was instant from heard. This an split be more clear you couldn’t testimony stupid impulsive it thought, was a with little or no second decision done say guilty. This that he’s not irrational decision. isn’t impulsively panic Killing somеbody and not a is not an excuse justi- killing justification. can be excused or never of Officer Garaffa killing] out for an killer cries but there’s an this explanation [sic: fied we that think about Before return verdict ask only you you your explanation. I and the evidence it Think about what Mr. Marucci and emphasizes first. unthinking which this with happened, impulsive unplanned, you, speed being bizarre fear at arrested. of this act in Rose’s irrational nature Teddy requirements presented law The evidence the Prosecutor satisfies dispute go Degnan you. Judge As we not that so will Pve said do define your and return verdict Prosecutor asks. ahead phase] you part penalty this trial. At the second [the We’llsee have. The answers which we know must you time we’ll answer questions that he Rose is an evil monster but there and will show not that Teddy are they Understanding justifiable. life His actions are not is indeed different. August significant 1984 and he’s human 8th, and critical to what on happened being whose life need not be sacrificed. [Emphasis supplied.] I have ready guilt, would the defendant's concession of Given prosecutor beyond harmless to find excesses of guilt. that conduct they as affected Not reasonable doubt not, with possibly it should be dealt excusable —it was Ramseur, 106 N.J. State v. See other forum. some (1987). 323-24 course, prosecu- appraisal of the

I of with the Court’s agree, disposition phase and of penalty in the tor’s remarks prose- only I that remarks. would add occasioned those as an guilt-phase summation acted improprieties in the cutorial penalty-phase excesses. produced by fire accelerant WILENTZ, dissenting part. C.J., concurring part, phase. guilt majority’s disposition I dissent from the charged. As to manslaughter have been should Aggravated opinion. case, majority join I the rest of the concur case, defendant, of On facts this could find that intending knowing prac- rather than death or death was certain, tically solely by desperate was motivated desire to apprehension. avoid One could find that shot he the victim intending to kill knowing without and without he what did practically certain to result in A the victim’s death. state necessarily of mind does not precisely track the definitions of may any A be Code. defendant devoid of state mind concerning the victim other escape than the wish to the conse- quences having separate committed a crime.

A fair inference from the facts of this case is that defendant Panic, course, panic. acted as a result of can induce an act practically death; that defendant knows is certain to result in panic panic that it was caused no excuse. But can also unaware, uncaring, induce a mindless solely concerned for act— survival, totally defendant’s with unconcerned the conse- quences to others. That state of mind —recklessness “mani- festing extreme indifference defining to human life”—is the aspect aggravated manslaughter under the Code. N.J.S.A. case, 2C:ll-4a. The facts though strongly sugges- in this more murder, purposeful knowing tive of a may reasonably or be suggest taken to that state of mind. The should have been allowed to decide the issue. v. (Arriagas), See State Crisantos (1986) (“the N.J. rational-basis test of the Code imposes a permitting low threshold a charge ... on a offense”). lesser-included

HANDLER, J., dissenting. capital defendant, This is a appeal murder in which the Teddy Rose, knowing purposeful was convicted of the murder of a police officer and sentenced to death. The Court affirms the murder, defendant’s conviction for but reverses defendant’s death I sentence. concur in the conclusion that the death reversed, sentence should be I although do so for different however, also, I reasons. would reverse defendant’s conviction for murder.

551 gives presentation history of the us an accurate The Court Anthony in The defendant shot Garaf- and evidence this case. officer, fa, very Irvington police in the stomach from close an in a range shotgun was concealed canvas with a sawed-off that witnessed; bag. defendant turned himself in shooting The was strongly to moved to a determi- and it. This evidence confessed knowing purposeful or mur- nation that defendant committed a der. to strength on the of the evidence hold majority relies refusing charge jury err on

that trial court did not in in aggravated manslaughter, and the trial court’s error harmless. Because I admitting prejudicial certain evidence was prejudice inhering majority’s differ assessment with decisions, I find in court’s and because the trial erroneous and the structure of the both the evidence adduced trial given, aggravated support charge, statute would not on I In manslaughter, find the errors be reversible. would during addition, prosecutorial I believe that misconduct conviction. I guilt-phase summation warrants reversal sentеnce, majority’s in the decision to reverse the death concur in in prejudice further find this case extreme allow- but would virtually the ing penalty phase in the to consider same factor, ‍‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌‍support aggravating of more one evidence than distorting comparing weigh- and thereby process involved addition, further ing aggravating mitigating factors. believe, permitted occurred, prejudice I when of sufficient aggravating an factor in the absence consider finding. support such a evidence to points the defendant’s justify the reversal of These several reversal, believe, I penalty. This conviction and death murder under either the conventional standard review mandated proposed I majority or the enhanced standard used (I), v. 112 45 applied capital Bey have cases. N.J. See State (II), (Handler, J., concurring); (1988) Bey v. N.J. State Koedatich, 112 (1988) (Handler, J., dissenting); v. N.J. State (1988)(Handler, J., 225 dissenting); Zola, State v. 112 N.J. 384 (1988) (Handler, J., concurring).

I. today upholds The Court a trial court’s charge refusal aggravated manslaughter capital in a murder case in which the argument that the possess defendant did not the state of mind requisite for murder only was the “defense” offered. The acknowledges that, Court insisting on a “clear indication” of aggravated manslaughter, Choice, 295, State v. 98 N.J. (1985), the trial applied court the wrong in deciding standard charge aggravated not to on manslaughter, ante at 479-480. The Court further acknowledges testimony in the record that (1) companion defendant’s was “surprised” “shocked” and when occurred, shooting (2) defendant himself crying occurred, nervous after shooting (3) the defendant turned in, (4) himself police defendant told turning on himself in that he had “reached into the sack and pulled when he it out of the sack it apparently had cocked and when it came out of the gun off,” sack 480, (5) went ante at the defendant stated on turning hoped himself that he live, (6) the officer would police defendant told that he had shot the officer reflexively panicked, because “I get did not want caught.” The Court acknowledges that testimony this only was “the evidence con- cerning defendant’s motive.” Ante at 531. The Court also concedes that certain evidence adduced the State to rebut any state of mind defense was erroneously. admitted Ante at Nonetheless, 488. purports Court apply State v. Crisan- (Arriagas), (1986), tos 102 N.J. and concludes that there was no rational allowing basis for to consider aggravated manslaughter in this case. disagree.

I my opinion, rational confronted with above, the evidence described expunged erroneously admitted, prejudicial State, evidence adduced could not acquitted defendant, have but could have found the defend- guilty having recklessly ant caused death “under circum life,” manifesting extreme indifference to human stances 2C:11-4a, shooting than of the officer with the rather N.J.S.A. die; object” “practical certainty” “conscious or that he would based, finding words, such a would have been in other not on evidence, sympathy unsupported by mere which would have irrational, testimony rendered it but rather on the credited shooting defendant’s behavior both before and after the re regretted recklessness, knowing flected a act of not a purposeful murder.

A. By refusing charge aggravated manslaughter on the trial jury knowing court left the with a choice: conviction of or purposeful acquittal. murder or Given that the defendant had officer, killing turned himself in and admitted to the act of way jury acquit there was no a rational could him. The court’s was, effect, guilt. in refusal a directed verdict of A rational however, jury might, have concluded on these facts that the telling probably defendant was the truth when he stated that he panicked being had shot the officer because he had and feared instruction, caught. given proper If could have panic considered whether this reflected the defendant’s “con 2C:2b(1); object” (purpose), scious to kill officer his N.J.S.A. “practical certainty” kill the officer that conduct would 2C:2-2b(2); (knowledge), disregard” his “conscious N.J.S.A. unjustifiable that his conduct would of “a substantial and risk” 2C:2-2b(3), (recklessness), kill the officer circum N.J.S.A. “manifesting stances extreme indifference to the value of hu life,” Having deprived man 2C:ll-4a. been of the N.J.S.A. alternative, potentially dispositive a rational could third only guilty capital murder. have reached one verdict: testimony makes much of the fact that there was Court defendant, officers, police experts supported and from the I knowing purposeful agree murder. conviction 554

the evidence described is support Court sufficient to verdict; jury’s one, however, challenging no sufficiency my opinion, of the evidence. In misapplies Court Crisantos by conducting weighing appropriate of evidence jury’s deliberation rather than the ascertainment of “rational ba- required by enjoins sis” Crisantos. That case courts to “exam- thoroughly” ine the record “in request” view of the defendant’s to determine whether the threshold” “low of rational basis is met. 102 at 278. N.J. by comparing seen

Precisely how low the is can be threshold testimony in this case with the evidence adduced in Crisan Bohannan, tos and v. N.J.Super. State 206 (App.Div. 646 1986), Powell, (1980), State v. 84 N.J. 305 cases whose results approval are discussed with Crisantos. Bohan nan, Appellate Division held that it was reversible error for the trial charge court to have second-degree refused to robbery. The court noted charge that such a is warranted there “[i]f exists a proofs rational basis in the support a conviction of crime____ degree the lesser very slight evidence [E]ven proposed on theory] compel will the instruction on a lesser [the offense.” N.J.Super. (citing Powell, State v. (1980)). Turning case, N.J. to the facts of the the court found such a rational degree robbery basis for second because handgun that he [d]efendant’s was unaware of a testimony until the [other returned to the car a second time was

perpetrators] direct evidence to be weighed against dangerous the circumstantial evidence that he knew that a would be used. It was for the to weapon determine whether he was aware of sufficient circumstances to believe or that an armed hope robbery at [Id. contemplated. 651.] Thus, despite strong circumstantial evidence contrary, that, where there credited, was evidence if would sup- have ported the lesser-included though offense—even that evidence derived from the self-serving testimony defendant’s court —the held that the given. instruction should have been Similarly, in case, majority this only concedes that “the evidence con- cerning shooting defendant’s motive for Officer Garaffa was defendant’s indicating panicked own statement he and did caught shotgun.” The to be with the Ante at 581. not want consider he was jury should have been allowed to whether and, so, panic if telling panic the truth about his whether recklessly. defendant act caused Crisantos, contrast, upheld by this Court the trial court’s charge manslaughter. The passion/provocation refusal approval, and that the Court cited Bohannan with cautioned requires slightly “a scintil “rational basis” standard more than evidence, added that “rational basis” supporting la” of but imposes a low threshold ... standard ... “[nevertheless charge at permitting a on a lesser-included offense.” 102 N.J. failed, however, to find on 277-78. The Court a rational basis it, manslaugh “[p]assion/provocation the record before because only in this case is not inconsistent with the defendants’ ter testimony; it is also inconsistent with the State’s version of by record.” testimony homicide and is substantiated no this that in Id. at 280. Court contrasted situation with Powell, supra, this held v. 84 N.J. which Court State have manslaughter should that the lesser-included offense any denial charged despite the defendant’s involvement been Manslaughter should have at and his assertion of an alibi. all Powell, charged, this held in “the State been Court because contradictory from defendant that was introduced statement Crisantos, instruction.” su support manslaughter held Powell, pra, (citing supra, at 280-81 v. N.J. 102 N.J. State concluded, 320). Thus, Pow Court Crisantos “[u]nlike ell, alleged provocation in this connects the no evidence record to the homicide.” Ibid. Crisantos, Powell, together, establish

Read Bohannan proposed if the lesser-included that no rational basis exists theories defense’s and the State’s offense contradicts both the by case, wholly unsupported the evi- and is otherwise supported must be (Crisantos). basis dence A rational evidence, than a but can be afforded slightly more “scintilla” statements, face of self-serving in the by a defendant’s even {Bohannan), ad- evidence strong contrary evidence single contradictory statement by the State —even duced directly contradicts both the defendant’s defendant —that case, theory of the so and the defense’s entire other statements support lesser-includ- could be read to long as that evidence case, (Powell). it is clear charge Turning to the facts of this ed that could be read to is evidence in the record that there distinguish- charge. This case is support the lesser-included therefore, Crisantos; able, question is whether from scintilla, and thus slightly more than a evidence amounts light truly slight rational basis test. meets the Powell, in approved in and as accepted Bohannan evidence Crisantos, threshold is met I believe that the rational basis testimony, light the defendant’s read this case circumstances, panic surrounding that he shot the officer out of caught weapon. with the that he would be companion’s conclusion—from the shock It is а rational occurred, distraught state shooting from the defendant’s afterward, surrender, confession, his immediately from his hoped statement that he panicked, statement that he and his defendant, when confronted would live—that the officer enforcement, and, simply panicked manifesting ex- law with of human life his desire to treme indifference to the value extent that the pulled trigger. To the escape, cocked aggravated manslaughter rests in this case on rational basis for statements, self-serving contradictory Bohan- defendant’s in- authority supporting are the issuance of nan and Powell where there is evidence structions on lesser-included offenses contradictory has made contrary, where the defendant record, and even where the lesser-included statements on the case, of theory defense. In this offense contradicts the theory of the de- course, offense was the the lesser-included extent, moreover, signifi- finds majority that the fense. To the affording the rational of the evidence cant the fact that all State, is control- adduced ante at Powell basis was not matter. of the evidence does ling authority that the source

557 majority challenge The not interpretation does this our of rather, precedent; responds the majority by that concluding state, “panic” is to irrelevant mental “in the that absence of insanity or capacity, person firing diminished a a sawed-off shotgun into range the abdomen of another point-blank at necessarily is aware that ‘it practically is certain’ that such conduct will cause the victim’s death.” Ante at 484. But cf. Palmer, 349, 211 N.J.Super. State v. (en- (App.Div.1986) 352 dorsing trial manifesting court’s definition of “circumstances - indifference,” extreme aggravated manslaughter purposes, practically certain to kill as conduct everyone “that is who might happen added)). way” (emphasis majori- to be in the The ty thus only concludes that what it concedes to “the be evidence ante at concerning motive,” 531, defendant’s was somehow irrelevant to the defendant’s state of The majority mind. accomplishes by pointing “panic” this that is out not a of state Code, contemplated by by ignoring mind the fact that Code, contemplated “recklessness” is by by and thus avoid- ing question “panic” of whether can to lead “reckless” behavior. neither, add, may

Panic not I be defined should Code— currency, fear, are other anger, terms of common such as or with a jealousy, party might expected which be describe sudden, plain “panic” state English of mind—but in means “[a] terror,” The overpowering Heritage Dictionary American of (1978 ed.), English Language 948, or “a sudden terror inspired by and accom- misapprehension danger often ... panied by unreasoning safety,” secure frantic efforts Dictionary (unabridged), Webster’sThird New International added). (emphasis scanty— at 1630 It was evidence—albeit precisely “panic,” inspired such “terror by such ... ... it, misapprehension danger” or, put as Justice O’Hern such — “overreactpon] perceived an to the this menace”—that led Bowens, term, v. State N.J. Court to hold last (1987), charged that the court on jury trial should have aggravated manslaughter. “overreactpon] term Code, menace,” in the was held not defined

perceived while issue of whether in Bowens to the the defendant had relevant so, in this recklessly; if how is it that evidence this acted misap- inspired ... a “panic,” or “terror ... case of similar danger” can considered irrelevant be prehension dis- Assuming that the was arguendo issue? identical Rose, confronted testimony Teddy when posed to credit the sudden, overpowering afflicted with police, “[a] terror,” preclude from consider- it is unreasonable to “sudden, overpowering terror” on defend- of that ing the effect that one who feels a of mind. It seems self-evident ant’s state likely “sudden, overpowering equally terror” is at least —and dis- likely “recklessly” act conscious perhaps more —to —with consequences his act—as he is to act regard potential of the of consequences his actions. “practical certainty” of the of with defendant’s jury if to allowed to find that the Surely is be “knowing” despite panic, his it should be mind was state of his conduct was “reck- possibility to consider the that allowed less” because of it. question consider the majority inexplicably thus fails to

The relating panic: to what if obviously raised the evidence most thinking only getting away, of not of where defendant nor, aiming nor of how close the officer was or whether he was matter, escape instrument of of the nature of his for that might prevent person who such proximity of the relation words, if, in a escape? in other the defendant was an What aggra- say panic? An instruction on I state blind—dare it?— jury probe manslaughter have “invited vated would insists, not, majority as the processes” mental defendant’s panic “interfered ... with speculate whether defendant’s act,” consequences of his ante capacity to be aware of the panic that led to define the extent to which but purposefully, disregard consequences: those defendant conscious—not insane knowingly, recklessly, the latter with or consequences of his actions incapacitated disregard for the or — “manifesting in circumstances extreme indifference to human life.” believe, short, existed,

I that a rational basis within the Crisantos, meaning for charging the lesser-included offense. approach emphasizing against Court’s evidence de — fendant, rather than the that support evidence could a rational precedent cynically; strong sup inference—distorts evidence exist, porting guilt greater charge of the always will or a charge greater unjustified on the offense be and will in will words, holding, By fact be error. in other that reversible “a charge aggravated manslaughter was unless unwarranted there was a rational basis on find which could that purposely defendant did knowingly not shoot Garaf Officer fa,” 482, the merely ante at Court has not misstated law Indeed, but it. provides express reformulated N.J.S.A. 2C:1-8e ly charge respect court shall not with to an “[t]he included offense unless there a rational a basis for verdict convicting the prior defendant the included offense.” no case, moreover, suggested has charge this Court on lesser-included offense was unwarranted unless there was a rational acquittal greater basis for offense that did exclusively not support derive from the existence of evidence ing conviction of lesser This offense. Court noted State Crisantos, v. supra, 102 at 277 n. formulation N.J. the proposed wording N.J.S.A. 2C:1-8e differed from the of the comparable of provision the Model Penal Code—“rational basis acquitting for a charged verdict the defendant of the offense convicting and him of the included offense”—but declined to any significance ascribe to the distinction. The for this reason clear; seems the because conviction of included offense entails acquittal greater, affording of basis the evidence a rational convicting involving degree culpability of an offense a lesser will afford necessarily acquittal a rational basis for the greater Thus, by omitting respecting the charge. language acquittal greater statute, charge of the from the while retain ing Commentary, legislature expressed it in the the its conclu- proper language simply extraneous to the that this

sion basis test: the existence of evidence focus of the rational the lesser-included offense. supporting conviction of however, only to today, seeks effect not majority The Code, language manipulate to it import the omitted into our but formulation, a two-part test. Under this new to create only not is not established unless a defendant has rational basis support that could a conviction on the lesser pointed to evidence this, why the also, quite apart explained from charge, but strength by assailing the have credited that evidence jury should opinion ap- this greater charge. my the evidence of the a “low threshold” into an unattainable ceil- proach transforms support of a ing. Any evidence that could be read to conviction greater charge may said to weaken the case for the lesser be Be- charge jury to the extent that the credits such evidence. weigh degree to which a will believe and evi- cause however, inscrutable, essentially question of what dence is support read to a lesser weight to afford evidence that could be charge today jury; left rational basis has has until been prior by slightly the existence of afforded in our cases been charge, not more than “a scintilla” of evidence of the lesser support- any weight against as the evidence assessment of its charge. majority’s approach ing greater of the conviction by requiring transforms the rational basis test courts thus “hypothesize” weight would have ascribed charge. Further- supporting conviction of the lesser evidence more, required all that is to establish a rational basis because the lesser of- slightly more than a “scintilla” of evidence of fense, outweighed always such evidence will almost be substan- great guilt sufficient to of the tially evidence establish extent, therefore, beyond To the offense a reasonable doubt. majority’s approach requires courts to assess against as weight of the evidence of the lesser offense greater, departs from all weight it evidence standard, usurps the precedent, imposes an unrealistic extent, moreover, majori- that the jury. To the function of

561 approach ty’s implies strength support that of the evidence ing greater charge conviction of the should be evaluated inde pendent supporting the evidence of the conviction lesser standard, standard; it sets if an unattainable there were a acquittal basis for rational was afforded not the evi supporting charge dence a lesser but the weakness of the greater charge, evidence the defendant should never greater been place. have convicted of offense the first independent a “rational Such basis” of the evidence of the charge words, lesser would difficult distinguish, be other Few, justifying from a “reasonable acquittal. any, doubt” if raising issue defendants this will be to meet such able view, In my only standard. possi evidence relevant to the bility acquittal greater purposes charge, of the of ascer taining whether is a “there rational a verdict basis for convict ing offense,” 2C:1-8e, of the included defendant N.J.S.A. the evidence that been the has focus of rational basis inquiry prior in all of our cases: the evidence that could be read support a lesser charge. conviction of standard, majority’s restating

The rather than this “low threshold,” it, and transmutes seems insurmountable on its is, moreover, It precisely approach face. that this Court rejected just by affirming Appellate last term Division’s Bowens, N.J.Super. (App.Div.1985), decision State v. 548 aff’d, (1987). case, a majority N.J. 622 of the Appellate panel Division reversed a murder conviction for the sponte charge aggrava trial court’s failure on sua manslaughter. Appellate ted reviewed the The Division record and, testimony chiefly relying testimony,” on “defendant’s own N.J.Super. found version of the evidence which “[a] supported aggravated would have verdict of or reckless dissent, manslaughter____” Appellate Division like the case, majority’s approach strength emphasized in this murder, evidence of and noted that defendant had “conceded in his brief that ‘there is more evidence on the record to infer a finding purposeful that defendant’s actions were either (dissenting opinion).

knowing’ than reckless.” Id. at 556 rather agreeing rejected dissenting approach, with This Court Appellate majority, which treated as approach of the Division murder, emphasizing strength of the irrelevant the evidence “sufficient the fact that defendant’s version afforded instead the defendant jury to have the consider whether evidence ... menace____” perceived at 640. N.J. overreacted perceived no to ... There was intimation that “overreact[ion] irrelevant it is not defined the Code or menace” was because convicting for not defendant had to show a rational basis support apart that could have read to from evidence been charge. conviction of the lesser majority’s formulation, requiring that defendant show a convicting greater charge, not him of the not

rational basis for negative, only requires prove defendants to but also shifts inquiry proper object: from its wheth- focus of the rational-basis credited, that, support exists if would the lesser- er evidence existed, charge. included Because such evidence and because no charge given, defendant’s conviction should be such reversed.

B. second, perhaps important, A reason that more aggravated convicting to consider should have been allowed knowing manslaughter is that it was allowed to convict of recklessness, knowledge murder. The distinction between “practical certainty” between of a result and “conscious dis result, regard” unjustifiable of “a substantial and risk” of a is a statute, Jersey’s capital one at Under New murder subtle best. death-eligible “knowing” a defendant can be considered for the death,” resulting in as bodily injury infliction of “serious but case, bodily in this serious the trial court instructed the injury bodily injury defined as which creates substan “can be death,” at 528. 2C:11-1b. Sim tial risk of ante See N.J.S.A. b, ilarly, aggrava “the risk under N.J.S.A. 2C:11-4a [both manslaughter] must be ‘a substantial risk of ted and reckless ” Cannel, Jersey death.’ New Code Criminal Justice Anno- (1987), Thus, at 259. “knowledge” tated term on which is statute, predicated in capital murder bodily inju- “serious ry,” very denotes the idea of “substantial risk” of on death aggravated manslaughter which predicated; the distinction “knowing” “aggravated between murder and manslaughter” therefore, cases, turns in close on the difference between “practical certainty” inflicting injury that one is with a substan- tial of death disregard risk and a conscious of a substantial risk of that death manifests “extreme indifference to the value of human life.” The Commеntary proposed to the Code revision 1971, of which the concepts ultimately introduced codified as “knowing” “aggravated murder manslaughter,” made clear the fineness of the distinction by suggest- between them ing it did that not exist: [Tjhere distinguished is a kind of reckless homicide that be cannot from ... knowingly.

homicides committed Recklessness an awareness of presupposes risk____ the creation of substantial risk, homicidal Since is a matter however, degree of and the risk motives for creation be infinite in some variation, may is needed to the case formula where recklessness should be assimilated identify knowledge. The is that of extreme to the indifference conception employed significance purpose knowledge or ... it is that human life. value of of precisely demonstrates such Whether so ex- recklessness indifference. it in treme that demonstrates similar indifference is not a our that, question directly it must be to the trier the be can further view, clarified; left facts. of Penal Volume II: Pinal of New [New Jersey Code, Commentary, the Report New (quoted Criminal Law Cannel, Revision Commission, Jersey Jersey 245-46) Criminal Code Annotated (1987), added).] (emphasis at is, therefore, signified by “knowledge” The “indifference” a species of “extreme indifference” to “substantial homicidal risk”; disregard” a “conscious of such “substantial homicidal “manifesting risk” in other extreme circumstances indifference life,” held, Commentary value of the human the raises manslaughter equivalent knowing reckless of murder.1 no the risk," 1There is intimation in the “motives for such Commentary ante majority argues, codified, 484, as must be as the to be relevant panic, indeed, such mind; to a defendant’s state of the conclusion that Commentary’s Thus, Commentary recognizes propinquity indeed, it — species of urges inseparability recklessness “manifest- —of to the value of human life” and ing extreme indifference murder; formula “knowing” “extreme indifference” is the knowledge.” is “assimilated “recklessness” which recognition any Perhaps in of the minuteness of distinction murder, aggra manslaughter knowing aggravated between manslaughter original omitted from the enactment of vated however, 1979, aggravated revision. man the Code and, provision separate slaughter only was added—but as a cases, pro language offense—in the proper lesser-included murder; applied, equivalent knowing as it posed in 1971 words, purposely the actor other than in other “when know manifesting death ingly causes under circumstances extreme L.1979, By to human life.” c. 178.2 further indifference language provision was amended amendment species to make clear “extreme indifference” established “recklessness,” in the 1971 Com precise term discussed L.1981, Cannel, mentary, “negligence.” rather than c. 290. Thus, Commentary’s 258-59. supra, at discussion knowledge between and recklessness that manifests distinction speaks directly to the terms of the current extreme indifference Palmer, supra, N.J.Super. at statute. State v. 211 352 Cf. (endorsing manifesting a definition of “circumstances extreme anyone kill “practically indifference” as conduct to certain way”). might happen in the who to be murder, Aggravated manslaughter is not a as class of intended, its in terms identical Code revision but formulation to suggests for risk be infinite in “motives creation variation” such may motives, “recklessness,” while relevant are not of codification. to susceptible legislation knowing adding 2The same also clarified the murder scope injury" language. Thus, the "serious was bodily “practical certainty” expressly injury” language just death; to the "serious made more than bodily applicable injury carrying a extends its to "substantial risk death” —the applicability aggravated manslaughter. precise scope Commentary, those discussed in the Commentary’s and the indistinguishable conclusion that those terms rendered it from murder, knowing give pause. particu should this Court This is larly consequences so when one considers the of the distinction original under the current When the Code. Code revision was proposed, Commentary pains point took to out that “[i]t capital only purposeful killings subject which the defendant Cannel, punishment.” Commentary (quoted supra, at 245). Thus, equated when the commentators what we know as aggravated manslaughter murder, knowing any proffered with distinction between them could have made a difference in degree only; 1979, aggrava this was the situation from when manslaughter adopted, Legisla ted until 1982. When the “knowing” ture included murder in the 1982 amendment reinsti however, tuting capital punishment, it transformed difference degree a tenuous one at that —into a difference in kind. —and year, upheld constitutionality Last this Court of this Ramseur, (1987); scheme. See State v. N.J. 194-95 J., (Handler, dissenting). but see id. at 389-90 further, Today goes holding this even Court that the distinc- “knowing” “aggravated tion between manslaugh- murder and ter” —a distinction the existence of which the Code Commenta- ry utterly, of 1971 denies but a distinction that can now mean great enough the difference between life and death—is murder, justify charging knowing on for which the death-eligible, refusing charge defendant is while on aggravated manslaughter, for which the defendant is not death- eligible. agree. my opinion, I cannot the distinction be- (an knowing practical certainty) tween a infliction infliction with (a death) bodily injury of serious substantial risk of and a disregard conscious of a risk of that mani- substantial death is, fests extreme indifference to the value of human life as the Commentary suggests, juries deliberatively, one for to draw not judges preemptively, particularly one trial to draw when only argument. that distinction is the defendant’s minimum, capital analysis suggests this cases At a charged “knowing” on murder it should also is which manslaughter. paraphrase the charged aggravated on To be degree Commentary, whether the of “indiffer- original Code closely approximates risk” more ence” to “substantial homicidal disregard” “manifesting certainty” or “a conscious “practical human life” is not a indifference to the value of extreme clarified; directly further “it must be left question that can be Accordingly, facts.” this conviction should to the trier of the the case remanded for the court’s refusal to reversed and be charge aggravated offense” of man- on the “lesser-included slaughter. measure, adopting prophylactic this should

Beyond this Court analysis implications proffered of the for this State’s face By enacting aggravated capital punishment system. man- knowing slaughter as a lesser-included offense of murder that, according original Commentary, render terms Code including knowing indistinguishable, and then mur- two offense, Legislature system capital der as a has created necessity irrationally. of function Even where a will offense, charge given the distinction on the lesser-included knowing convicted of murder and sen- between defendants die, knowing tenced to defendants convicted of murder whose instead, convicted, spared, aggrava- are defendants lives difficult, manslaughter impossible, if not to draw. ted will be moreover, By holding today, as it does this Court exacerbates irrationality; guilt knowing this there will now be verdicts murder that are unreliable because the was not allowed to identical, non-death-eligi- convicting nearly consider but ble, aggravated manslaughter. enjoined, crime of This Court is however, requirement proportionality re- statutory view, rationality. attempt compare “like” cases to ensure is, therefore, by upholding this

The Court’s dilemma clear: structure, statutory proportionality it made an effective has necessary as it has rendered it next to review more even addition, charging prosecu- left to impossible. In discretion structure, statutory tors this in particularly view of this unwillingness guidelines Court’s prosecutorial to set to channel discretion, Koedatich, (1988), State v. N.J. 225 seems to me in charging certain result irreconcilable decisions. Legislature’s aggravated manslaughter The enactment of as offense, coupled a lesser-included knowing with its inclusion of offense, capital bespeaks murder as a inadvertence rather than deliberation, an inadvertence reflected in the any absence of legislative history explaining why aggravated manslaughter is murder, distinguishable knowing now an offense from and in capital legislation’s the statement of the sponsor murder capital this murder State’s statute is “not as broad” as statutes states, part in some other in death-eligi- because defendants are only guilty murder, willful, if degree ble “found ... of first murder,” premeditated degree closely correspond- of murder ing only “purposeful” Capital with a state of mind. Punish- Hearings ment Act: on Judiciary S.112 Senate Before (1982) Committee at 1. Because I see little distinction between aggravated manslaughter murder, knowing my and because knowing belief is unshaken that the inclusion of murder as a capital offense has contributed to the creation of an unconstitu- defendants, tionally capital overbroad class of and I because am Legislature’s adoption aggravated convinced that the man- as, effect, offense, slaughter coupled lesser-included with offense, knowing capital its inclusion of murder as a has system only arbitrary created a that can function in an capricious fashion, my objections I am constrained to renew constitutionality capital of the murder statute. v. See State (II), (1988) (Handler, J., Bey .dissenting); 112 N.J. 123 State v. Ramseur, (Handler, J., supra, dissenting). 106 N.J. 343

II. stringency deciding Court’s that there was no rational charging aggravated manslaughter sharp for basis stands evidentiary rulings contrast to its assessment of other and to prosecutorial during its treatment of guilt misconduct upholds phase. evidentiary The Court and confirms harmless rulings admittedly whose relevance is attenuated and whose capacity prejudice flagrant undisputed. is both In addition, glosses glaring prosecuto- the Court over a instance of during guilt phase my rial misconduct trial. opinion, issues warrant both reversal.

A. uphold The Court strains to as relevant to the defendant’s state of mind the testimony concerning admission of defend- brandishing gun ant’s of the on another occasion. The Court testimony concedes that this was prove inadmissible “to that on 8, August 1984, possessed shotgun defendant with the purpose Nonetheless, unlawfully.” to use it Ante at 488. upholds Court testimony admission of the as “somewhat relevant to the issue of defendant’s state of mind at the time of shooting,” points, support ante at as position, for this requested, to the fact that defendant guilt “at the close of the phase charge aggravated manslaughter.” ... a at Ante 489.

The ways. Court cannot have it Surely play- both if the ground conversation is as admissible “somewhat relevant” to mind, the defendant’s state of the concentration of other evi- surrender, confession, remorse, dence discussed above—the etc. refuting —affords a “rational basis” for what this “somewhat prove. Furthermore, relevant” evidence is allowed to if the incident, playground evidence of the which involved defendant’s man, antipathy toward a black is relevant at all to defendant’s shooting policeman is, of the white my its relevance —and view, so require remote as to exclusion—that relevance lies in revealing ready a defendant weapon regard to use his without identity for the target of his and therefore with reckless dis- regard definition, for the very value of human life—the it me, aggravated seems to manslaughter. See State v. Palm- er, supra, 211 352. If the N.J.Super. Court insists that this admitted, properly interpreta was it must evidence consider might support charge aggrava tions of this evidence that Powell, manslaughter. supra, ted State v. 305. N.J reading This of relevance is buttressed the admission of testimony purchased shotgun that the defendant had be- having problems Jersey cause “he was some over in some with niggers.” testimony, concludes that this Court like the playground testimony, probative ques- was “somewhat shooting purposeful tion of whether defendant’s ... was accidental,” admission, erroneous, then holds that its if was harmless. Ante at If 488-489. this evidence is “somewhat probative” on purposeful whether the conduct was or acciden- tal, equally probative, given it problem was that defendant’s niggers” with “some policeman, was and his victim was a white on whether that state of mind was extreme indifference to the life; admitted, properly value of human if it given option should have been consider its relevance respect. this event, any

In it capacity seems to me clear that the of this was, prejudice, convincing evidence for for the that this as prosecutor it, who, put just guy” the a “bad in addition to blacks, killing cop, outweighed any a white hated relevance it might have to the defendant’s state of mind. 4. Its Evid.R. likelihood, moreover, felt, in effect will all continue to as the be guilt phase customarily record of the is entered into evidence resentencing. capacity The of this evidence that the defendant bigot corrupt balancing sentencing, is a racial the moral of to function, words, factor, non-statutory aggravating in other as a minimum, seems to me At a should incalculable. Court expunged order this into evidence from record introduced resentencing hearing. at the evidence justifies possible grounds” The its search for “the for Court upholding admissibility noting of the evidence that such necessity according a search “underscores the some mea- “may discretion to trial courts” where the evidence be sure of inflammatory.” degree material and Ante at 489. This both case, where, particularly inexplicable capital of deference is in a here, rulings nothing demeanor or other as have to do with unique purview factors of the trial court. The within protestations majority’s repeated that its review of the record capital independent searching, e.g., Bey in is cases State v. (II), 123; Koedatich, supra, supra, N.J. State v. N.J. case, irony in take on an inadvertent this where the Court possible grounds” scrupulously searches the record to find “the prejudicial to hold this evidence as admissible relevant state mind, holding only relating while that the record evidence the defendant’s motive was irrelevant to his state of mind and discounting support other evidence that could be read to aggravated manslaughter. rational basis for evidence, short, This should not have been admitted. Even admission, however, uphold if the Court is correct to its it can read other be with evidence the case to afford a rational case, charge aggravated manslaughter. basis for a either my judgment, the conviction should be reversed. B. prosecutor’s during

The numerous penalty excesses phase length by majority. are treated at Ante at 508- indeed, majority gives 524. The short no shrift —how- shrift — ever, improper prosecutorial during to an instance comment guilt phase corrupted working the entire of the statute. During closing argument, prosecutor following drew comparison defendant and the between victim: photograph

This this is the man who took the life of an honest Rose, Teddy working abiding hard law citizen who was on the streets to and I. protect you This is the difference officer is a different, between this you. police different This is than Rose. Officer Garaffa a like person you, Teddy person job I in and who does his and out to raise a There’s you day day family. something though else about him that makes this the serious case that it is here talked this in we about selection. and this the likes of this man. man, Officer stands between He, Garaffa, you in we’re not in New we’re not Essex nowhere, Take him we’re Jersey, away, abiding a serious we’re not in the free law You have country. County, as I stated. responsibility go saying Teddy should that Rose is no more or It without culpable knowing purposeful for or murder because his less person job day day out to victim was a “who does knowing pur- family.” raise a Defendant either committed or not; manslaughter poseful aggravated murder or or he did community absolutely victim’s status irrelevant during guilt degree culpability phase. further, however, prosecutor arguing that the fact went policeman case

that the victim was a “makes this the serious egregious any that that it is here.” This comment is as as case, corrupt the during capital occur for its effect is to could prosecutor of the entire statute. The was correct structure police the victim was a officer “makes this the that fact that ” so, however, is; serious case it it does virtue of that case, c(4)(f), c(4)(h) and, are aggravating factors in this which phase. By inject- properly jury during penalty before guilt phase ing penalty phase aggravating factor into the deliberation, prosecutor ignored prin- and frustrated a both conducting proceeding capital in a cipal purpose of a bifurcated guilt becoming prevent phase deliberation from case: might aggravate the crime as infected with circumstances concerned, no sentencing is but that bear relevance far as during guilt phase capacity prejudice for and substantial deliberation. Clifford, concurring, agrees that this statement con-

Justice misconduct, that it was rendered harm- stituted but concludes ready acknowledgement beyond doubt “the less a reasonable guilty that his client was of defense counsel his summation at 547. Justice knowing purposeful murder.” Ante 548-549, summation, at quotes length from this ante Clifford nothing prosecutor said could have as an indication defendant; is all too true with things this made worse jury’s moreover, I respect guilt. agree, deliberation of prosecutor’s with Justice Clifford that both comment and in defense counsel’s summation must be seen context. I differ, however, my from Justice assessment Clifford of that context, weight and in the that I attach to defense counsel’s summation. summation, delivering

Prior to defense counsel re- had quested aggravated manslaughter; an instruction on rejec- evidence, request, despite tion of this supra, discussed supported charge, effectively could have directed a verdict guilt. of Justice Clifford thus makes too much of the defense “ready acknowledgement” guilt; counsel’s what else was substantiating defense counsel to do? Rather than the harm- remarks, prosecutor’s lessness of the defense counsel’s summa- tion, context, speaks read in eloquently of how was the harmful charge trial court’s refusal to on the lesser-included offense. jury’s was, co-opted; deliberations were there as defense recognized, nothing counsel for the to decide: finding guilty knowing You know that a murder forces us to purposeful go to a where the alternatives are either life ... or penalty phase imprisonment the death penalty. It’s difficult for him to admit it’s difficult for us to concede it and that, perhaps for those will be the you it, available to accept accept only options you____ context, prosecutor’s guilt-phase Viewed this remarks are egregious, they the more corruption reveal that his statutory gratuitous structure was as as it was calculated. The behavior, only explanation prosecutor’s for the after defense summation, pursuit counsel’s is not that he was in zealous of a conviction—that much had been conceded—but that he was using guilt-phаse jury’s deliberation to penal- condition the ty-phase sentence. This behavior is a clear violation due be, process, wrongful deprivation and should like the of a peremptory challenge, regard reversible without showing to a prejudice. of actual Ramseur, 322-23, supra, v. State N.J. at we admon- prosecutors

ished capital that we would not hesitate to reverse prosecutorial convictions based on misconduct where that con- egregious deprived duct is “so that it defendant of a fair trial.” case; depends This is such a the “fairness” of a trial not on the defendant, culpability of a for it seems that the obvious most unfair; rather, guilty defendant can have a trial that was rest, cases, particularly capital fairness of a trial must on the integrity procedures safeguarded of the the trial. The instance noted demonstrates that the misconduct in this case begin penalty phase, did not with the but infected the entire and, indeed, proceeding mockery statutory made a of the by insisting jurors scheme consider what made the crime aggravated they even as deliberated whether it was a crime at Koedatich, put supra, all. As Justice Clifford it in State v. “I hope avoiding repetition at 342: see little N.J. deprivation right of a fundamental constitutional ato fair trial ’ warning if we do no more than ‘reiterate our ... that dire violations____” consequences may [prosecutorial] flow from Indeed, by virtually misconduct, ignoring this instance of majority wrong signal. entirely sends an The defendant’s conviction must be reversed.

III. case, In I this find that serious errors have affected the weighing process jury’s that is critical determination of majority whether dies. The the defendant lives or concludes quite soundly that there must be a reversal of the death infecting jury’s penalty. sentences for errors deliberation of addition, agree. weighing process I I was believe aggravating irretrievably by improperly multiplying distorted factors, and, further, by permitting jury to consider and simply aggravating deliberate on an factor for which there was support. no evidential

A. cases, prior my reliability I expressed, have view that the capital potential for ostensi- sentences is undermined bly aggravating distinct factors to be based on identical evi- Ramseur, supra, 21; dence. See v. State 106 N.J. at 392 n. (II), Bey supra, State v. at 155-163. The N.J. Court has rejected argument, acknowledging this potential preju- holding long dice but jury that so as the is made aware “that it once, considering is the same facts more than and [is made] cognizant being prove that the same facts are used to more factor,” aggravating than one counting id. at double permissible.

The problem. facts of this case illustrate the find, factors, instructed among c(4)(f) that it could other factor (that “the murder was purpose escaping committed for the detection, etc.) apprehension,” c(4)(h) (“The and factor defend- public ant murdered a servant ... while the victim was en- gaged performance duties____”). Thus, of his official aggravated was allowed to find that the murder was detection, both because defendant escape murdered to and be- cause he person duty murdered the whose it was to detect him. “performance Because the was, victim’s of his official duties” fact, in the sought “detection” from which escape, defendant the aggravating two factors only overlapping are not but identical; nearly given acknowledgement the Court’s of the potential prejudice, one point allowing wonders what the is of the jury even to consider both factors. true, moreover,

While it is that there is “a series of cases allowing from other states” overlapping submission of aggravating factors, true, it is not majority’s analysis as the implies, that only prohibit California is the state to the submis- Indeed, sion of overlapping point factors. the case law on this seems, anything, if evenly divided. While the majority cites Ohio, cases Georgia, Maryland, from and North Carolina that factors, allow for the overlapping submission of it is worth that, noting California, Alabama, Florida, addition to prohibit See, Nebraska overlapping submission of factors. State, e.g., 1251, (Ala.1979); Cook v. 369 So.2d 1256 Provence State, 783, (Fla.1976) v. 337 (prohibiting So.2d 786 submission

575 robbery of and murder murder committed course of both refer pecuniary gain because “both subsections committed for crime____ who aspect of the defendant’s same [O]ne robbery always will capital crime in the course of a commits a him____”); against aggravating circumstances begin with two (1977). 528, Further Rust, 250 867 v. 197 Neb. N.W.2d State more, state that has allowed the justice from another one expressed overlapping aggravating factors has of submission (Miss.), State, 339, 2d 351-52 misgivings. Wiley v. So. 278, 304, denied, 906, reh. 93 L.Ed.2d 479 U.S. S.Ct. cert. 604, (1986), denied, 93 L.Ed.2d 604 107 S.Ct. U.S. Robertson, Mississippi Court’s had endorsed Justice who factors, view, departed from this overlapping of allowance stating: largest has a with the number of “circumstances” one doubts that side [N]o advantage sentencing jury____ In the of end, fallacy before

practical aggravated recognize murders are a defend- rule is its failure to our single legally language____ A indivisible act not conduct, ant’s by statutory may rationally aggravate a murder but once. [Id. at 358 defendant (Robertson, concurring).] J., allowing the result of to me clear that the inevitable It seems inflation case is an artificial consider factors this jury to both of the aggravating circumstances statutory language of the carries with it the separate factors crime. The submission degree is found escalates the implication each factor that simply they separate? One why else would be aggravation; however, this defendant’s con- separate, the reason for cannot factor, duct, performance from the of one basis acted the of the other. The duty, the basis officer’s defendant in the acting precisely because the way he did officer and result between motive duty. The distinction course therefore, of this case. is, specious in the circumstances entirely (if undersells) potential acknowledges it The Court limiting instruc- by cured holds that this can be prejudice, but weight giving undue “prevent it from jury tion to the that will ” (quoting v. Ante at 526 State of factors.... to number (II), 177.) Bey supra, Try imagine the effect N.J. at perspective this instruction from juror. of a rational This juror will be instructed that he or conducting she will be weighing process, in which the will be asked to enumerate aspects certain legislature crime deemed it; “aggravate” implication inevitable of this task is that degree aggravation of the crime increases with the presumably separate number of these circumstances that are implication found to exist. This is undermined where the aggravating underlying element two factors is identical. The this, recognizes Court juror instructed, so the will now be you essence: “Look. We want to be aware that though even exist, these two may you circumstances have considered the this, same facts twice. You are you allowed to do but we want you doing give know that are it. Do not those factors undue weight.” juror, A rational charge, confronted with this may well wonder weight.” what is meant “undue Does undue weight giving consist in any weight the second factor at all? Giving weight? Giving both full three-quarters both weight each would have if considered alone? Giving one full weight and the other half? Does not the fact that there are two circumstances rather than one degree increase the aggravation? inadequacy

The majority’s hybrid patent. instruction is weight” The “undue is accorded automatically when the allowed to find that aggravated this murder was both because escape defendant murdered to detection and because he mur- person dered the duty whose it was to detect him. The jury allowed, remand, should not e(4)(f) be on to find both c(4)(h).

B. jury’s The weighing conduct of the process was further corrupted by factor, c(4)(c), its consideration of an aggravating unsupported by that was the evidence. majority appropri- ately concludes vacated, that because the being sentence is “we definitively question now resolve the whether the not need necessarily aggravating submission of an factor ... improper gratuitous analysis error.” The Court’s constitutes reversible however, rejection the of one jury’s that because suggests, compels inhibits determina factor “neither nor its aggravating exists,” our of tion that another factor case State v. Christen (1976), er, inapposite. reject is I this dictum. 71 N.J. proposition that it is reversible stands the Christener jury degree a crime that is more to instruct the on a of error so, support. This is the Court than the evidence will serious jury held, must be assumed that the inferred because “[i]t the of that giving of such an instruction that elements the majority The present in the case.” Id. at 73. has charge were capital-murder in the aggravating that the circumstances held function, death-eligible defend- narrowing the class of statute Ramseur, supra, ants, v. as elements offense. State Thus, aggravating an 27. to the extent that at 201 n. 106 N.J. evidence, charged unsupported is is that circumstance inflation of artificial very evil identified Christener —an present— assume are that the is entitled to the elements proffered distinc- majority’s corrupts the deliberations. compels nor tion, moreover, “rejection one factor neither unper- another factor exists” its determination that inhibits charge that the jury’s inference from suasive. Given the case, likely that it seems present are elements charged, the more aggravating factors greater the number of those factors at lеast some likely is to believe that compulsion toward a precisely the This is kind present. are compromise, of an element acceptance, in the interest jury’s Court the Christener rejected have might it otherwise reason, majori- For this requires held reversal. expressly rejected. ty’s be dictum should

IV. today reveals Court’s result anything, than More general this State’s penalty on of the death corrosive effect jurisprudence. criminal as in Just State v. Koedatich principle of a prejudice” “realistic likelihood of has been so change distorted that a of venue will virtually impossi- now be obtain, just (II) ble to as in Bey State v. the circumstances under which one can right be said to have invoked the to cut off questioning have so ambiguity longer been narrowed that is no sufficient, in so this case the “low threshold” of evidence required support an instruction on a lesser-included offense considerably, has been raised only the record evidence of a defendant’s motive has been declared irrelevant to his state of mind, scope of what undisputably inflammatory evidence is admissible as relevant to a defendant’s state of mind is broad- substantially, scope ened and the prosecutorial of allowable expanded ’comment is integrity so that the of the statute is undermined.

My case, differences with the in cases, Court this in prior as reflect the fact that the employed Court has a more tolerant and less strict substantive standard for determining reversibili- ty than is demanded in the appeal capital-murder direct of See, (I), convictions. e.g., Bey (an State v. 112 N.J. at 93-95 error is if produced result,” reversible it has not “unjust an R. 2:10-1, appear or if it does beyond not a reasonable doubt that verdict, error jury’s guilty contributed to the citing State v. Macon, (1971)). However, 57 N.J. 325 I believe that even under this substantive standard of reversible error there should be a reversal. Whether “unjust” the result is imposition of a —the death sentence—cannot be determined merely by a review of Moreover, evidence. I do not it believe can be concluded beyond a errors, reasonable doubt that certain of the discount- ed the majority, did not jury’s contribute to the verdict of guilty. majority’s result illustrates how elastic the stan- become, dard for harmless error can easily and how courts can succumb, cases, capital in temptation to defer inappropri- ately to trial judgments. court It is for these I reasons that adoption have advocated clearly of a defined standard of review capital for cases. cases, should, capital in but submit, focus on results I not

We produce them. Result- procedures of integrity on essentially call a “harmless error” tests such as oriented evidence, weighing proper of comparing a and quantification simply to determine whether improper with evidence evidence jury’s satisfactorily explain for and former can account test, assumption this the latter. The without determination well-grounded appeals, of criminal generality for the perhaps primarily as guilt can be viewed jury’s that the determination evidence, only tangen- and consideration assessment assumption, sug- I That tially the exercise of conscience. as capital-murder prosecution, be a gest, must discarded it should find is not told that only proceeding which thought for the ultimate sentence. with no the facts life, then pay criminal with the State insists When acknowledge accept fully, begrudgingly, not it must evidence community. The jury as the conscience of the not, then, quantified, but simply weighed and capital case is prism constitutes our through the rather sorted and seen insight jury’s of the community It this conscience. is collective impels adopt function that us responsibility and deliberative capital cases. error in exacting for reversible a more standard question of whether be that answers the review should one Our an error had adverse any possibility realistic there was jury. an Such influence on the deliberations detrimental thinking, alter the cloud the one that can effect or influence alone should jury. That the conscience of feeling, or color murder, not on capital whether impugn a verdict for suffice to itself, part, said to could be error in whole or some scale the verdict. have caused the opinion. joins II this Part

Justice O’HERN opinion majority joins in the Justice WILENTZ Chief dissenting separate ‍‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌​​‌​​​‌​‌‍has filed a penalty phase on but guilt opinion phase. on the joins majority opinion

Justice O’HERN on penalty phase, joins in but Part II of Justice dissenting opinion respect HANDLER’S guilt phase. sentence; For convictions and reversal affirmance of CLIFFORD, POLLOCK,

remand —Justices GARIBALDI and STEIN-4. sentences; reversal

For convictions and remand —Chief Justice WILENTZ and Justices HANDLER and O’HERN-3. JAMES,

IN THE MATTER OF H. CHARLES AN ATTORNEY AT LAW. 4, Argued January October 1988 Decided 1988.

Case Details

Case Name: State v. Rose

Court Name: Supreme Court of New Jersey

Date Published: Sep 22, 1988

Citation: 548 A.2d 1058

Court Abbreviation: N.J.