*1 Although of the child is custody of best interests dispositive question govern it does not the question in a between natural parents, issue dispute long fact that a child would be been decided that the mere termination. It has basis for than with another is an insufficient off with one set of better parents rights____ terminating some noted, natural It must be despite parent’s language are not the interests that the interests of the child only the contrary, rights, both constitu- issues are raised. The involved when termination parent’s own tional and have their statutory, independent vitality. (citations omitted).] A.2d 1227 M., 445, 109N.J. at [Baby supra, remand, Family qualitative must make the determi- Part On statute, nation, whether analytical framework of the using the will of the children has been and physical or mental health relationship with their father. jeopardized be their continue Parham, 2504, 61 L.Ed.2d at supra, 99 S.Ct. at U.S. 119. joins opinion. this
Justice STEIN For reversal and remandment —Chief Justice PORITZ and O’HERN, HANDLER, POLLOCK, GARIBALDI, Justices STEIN and COLEMAN —7.
Opposed,—None.
COLEMAN, J. 8, 1996, On defendant, October Simon, Robert pled guilty to theft, burglary, possession firearm, unlawful possession of a of a weapon for an purpose, felony murder, unlawful purposeful knowing murder his own Sergeant conduct of Ippolito Gonzalez, a Franklin Township police jury officer. A sentenced defendant to death. This is defendant’s appeal direct from his conviction capital murder and sentence of death. See R. 2:2- 1(a)(3). We affirm all of the convictions as well as the sentence of death.
I 6,May On defendant and Staples Charles were members of the motorcycle Warlocks gang. day, On that they burglarized *13 Township, Heating building in located the Environmental Franklin away only buildings Township a few from the Franklin Police driving was to the Headquarters. As Officer Kenneth Siderio night, he a p.m. station work the 11:00 shift that observed police to Heating building. parked in front of Environmental vehicle the black, a later identified as Officer Siderio noticed man dressed defendant, emerge loading from dock area and lean into the the talking if parked vehicle as he was passenger side window the vehicle, passed parked he to someone. When Officer Siderio the man, Staples, sitting in the another later identified as observed burglary progress, Suspecting front seat. that a was Officer his suspicions Crescitelli of Siderio informed Officer Kenneth police the Officer Crescitelli left to when he arrived at station. investigate. time,
Meanwhile, Gonzalez, at Sergeant patrol who on was flashing up patrol on car’s pulled behind the vehicle and turned his Apparently patrol equipped was not lights. because his vehicle terminal, Sergeant Gonzalez called into head- with a mobile data stop request look-up quarters p.m. report at to and to 10:29 that the plate number. He was informed car vehicle’s pulled out registered Staples. Officer Crescitelli to Charles When lot, Sergeant police headquarters’ parking he observed of the standing on the side of the vehicle with some driver’s Gonzalez talking Deciding nothing the driver. papers his hand to unusual, However, police about looked he returned to the station. station, police after Officer returned to four minutes Crescitelli requested backup. Sergeant Gonzalez Sergeant had Clay, Both who also observed Officer William vehicle, parked at and Officer Cresei- the window the Gonzalez they Before could responded Sergeant request. telli Gonzalez’s however, scene, gunshot. them Other each of heard reach gunshots apart. ten seconds a total of two about witnesses heard scene, arrive Clay, being the first observed Officer the scene. Officer Crescitelli Staples drive his vehicle from When Clay pursue Staples him up, instructed drove Officer *14 join radioed for pursuit. thereafter, other units to Soon Staples lost control of his vehicle and guardrail. slammed into a side, Defendant exited the passenger vehicle from the pointed his gun Crescitelli, toward Officer and ran. yelled Officer Crescitelli at defendant stop; to when defendant failed to heed warning, Officer Crescitelli fired three shots at him. One of the shots struck defendant in leg. flipped guardrail Defendant over the yelled, give up. “I I’m shot.” Staples Both defendant and point. were arrested at that
Automobile registration insurance and cards were found in the vehicle with a through bullet hole them. Defendant’s Social Security Staples’ Card and driver’s license were found underneath Sergeant leg Gonzalez’s with a through bullet hole them. An expert testified that the hole in the by insurance card was made a gun fired from a distance of 20 to 40 police inches. The found coins, rings, bill, several watches Japanese and several $5 vehicle, rifles in the all of belonged which occupants of the Heating Environmental building.
Sergeant Gonzalez was shot twice. The medical examiner opined that passed the first shot through right side of his neck, down, knocking him but was not fatal. The second and fatal shot ear; entered his skull right behind his lodged the bullet in his expert brain. A firearms gun testified that the found near the guardrail where defendant apprehended was was the murder weapon. 3, 1995, August
On County Gloucester Jury Grand indicted defendant and co-defendant Staples Charles following on the charges: purposeful murder, and knowing each his own con- duct, 2C:11-3a(l) contrary (2) (counts to N.J.S.A. one and two); felony murder, contrary 2C:11-3a(3) (count to N.J.S.A. three); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count four); theft, third-degree contrary to N.J.S.A. 2C:20-3 (count five); third-degree possession firearm, unlawful of a con- trary (count six); N.J.S.A. 2C:58-4 and 39-5b and second- degree possession weapon of a for an purpose, contrary unlawful (count seven). charged Defendant was also 2C:39-4a N.J.S.A. second-degree possession weapon of a count of with an additional (count contrary to 2C:39-4a purpose, for an unlawful N.J.S.A. nine). Staples; it eight only against co-defendant Count was second-degree eluding a law enforcement offi- charged him with cer, contrary Because the State did to N.J.S.A. 2C:29-2. Staples trigger-person who defendant or was the know whether Gonzalez, charge of them with Sergeant it decided to both killed require knowing by his own conduct and purposeful and murder actually the killer. jury to determine which one -A- *15 Guilty Pleas 7, 1996, the commencement of the Monday, October before On trial, trial court his inten- guilt-phase defendant announced to the him, including charges against the plead guilty tion to to all of the giving guilty plea, his defendant stated: murder. Prior to ago I wanted to fire I think it was I came into the court and said About a week guys, and deceitful and for reasons that were they incompetent these my attorneys, going me, then the next told I would not feel safe into court with them and day you it, have to take that’s me, well, them, I think it was the next told you day, you going guys, was a conflict of interest. to use these even after there you’re everything, going a I’m to enter to avoid all this conflict of interest Now, guilty right I don’t see a now and it will out co-defendant. my of maybe help plea going the tubes. reason for both of us down pled guilty, if he explained to defendant that he The trial court innocence, right the to a giving up presumption the would be jury, testify before a by jury, right the to on his own behalf trial defenses, call any right the to confront and right present to witnesses, may any motions that right and the to file additional he understood him in Defendant stated that assist his defense. rights, and that he still giving up be each of those that he would guilty. plead wanted to statement, coun- preliminary defense response
In to defendant’s they by surprise taken trial court that were sel informed the they time guilty plea a because each desire to enter defendant’s him, said potential guilty plea had discussed a with defendant had plead guilty. not Defense counsel believed that he intended to pressured pleading guilty. support that defendant was into To claim, newspaper defense counsel showed the trial court a article motorcycle gang of the were that stated members Warlocks Additionally, urging change plea guilty. defendant to his to one of gang, present the members of the Warlocks who was pled guilty, punch- courtroom the week before defendant was seen ing palm. day, his fist into his that same defendant was On containing phone president handed note number chapter. local Warlocks When defense counsel asked defendant if threatened, responded he had been defendant that he could not them, that he tell but did have a choice and it was not his decision. Defendant also advised counsel that he would be able to try penalty Staples’ guilt- to save his own life at the trial once phase trial had been concluded. follow-up potential
As a to defense counsel’s assertion of threats, meeting the trial court conducted an in-camera with defendant and his counsel and asked defendant if he had been responded threatened. Defendant that no one had threatened him, entering guilty plea and that he was of his own free will. Later, part he told the trial court that of the reason for his choice plead guilty go was that he did not want trial with his attorneys. judge lawyers Yet when trial if asked new would difference, make a responded defendant no and reasserted that he *16 plead guilty help Staples. wanted to in order to When asked punching whether he saw the man palm, his fist into his defendant it, explained: may caught “I think I glimpse yeah. have He on, man, Yeah, right thing, was like come do the like that. all like, know, man, right. you hey, you It wasn’t get right better it something.” or The trial court if also asked defendant he would cooperate attorneys penalty phase with his at the of the trial and responded whether he wanted to die. Defendant that he was not suicide, going to commit but he did not care if he died. statements, proceed to the court decided Based on defendant’s adminis- proceedings. After defendant was guilty plea with oath, that he understood the informed the trial court tered the he feeling he was well and agreement” signed he had and that “plea prior many of the repeated The trial court not intoxicated. in-eamera during the that had been asked of defendant questions why pleading guilty was and wheth- meeting regarding defendant consequences pleading guilty. Defendant er he understood meeting. in-camera repeated responses his from the guilty proposed for the attempt In to the factual basis an obtain on the about the events trial court asked defendant pleas, the Staples’ that he exited night of the murder. Defendant testified got I Sergeant explained: He ‘When to talk to Gonzalez. vehicle just I going gun his out of the car Officer Gonzalez me, I your I went for mine and away him from Honor. wanted that he was six feet from him.” Defendant estimated shot Ser- then gun. The trial court geant when he fired the Gonzalez shooting Sergeant concerning purpose his questioned defendant kill him. Defendant ex- he intended to and whether Gonzalez away me---- I get him from plained: “I intended to cause me, guess I if that away your Honor. get him from intended that, him, although he also testified killing you know.” He took victim, upper in the shooting Gonzalez gun not aim the at the did away from him. He get body or head is what it took to Gonzalez Gonzalez, and that he intended to shoot said that he intended Gonzalez, or scare him. He rather than warn to hit bullet was to shooting Sergeant Gonzalez purpose that his explained him, if that is what it took bodily harm or to kill him serious cause get away him from him. shot, had been he that after Gonzalez Defendant admitted only They stopped when the scene. Staples attempted to flee vehicle, crash, exited the defendant car crashed. After their Creseitelli, to run before and tried gun his toward Officer pointed causing him to fall down leg, in his shot him the officer *17 gun said he surrender. Defendant obtained from underneath Staples’ Staples mattress while was in the bathroom.
To Sergeant contradict defendant’s assertion that Gonzalez first, gun prosecutor drew his informed the court that the accounts, physical eyewitness evidence at the scene and indicated holster, gun that the officer’s remained in its that he had not snaps removing gun removed either of the two essential to prosecutor from its holster. The also stated that based on ballistic evidence, away Sergeant the shooter was two to three feet from Gonzalez when the fatal shot was fired. 8, accepted guilty plea
The trial court defendant’s on October day, 1996. capital On the same the State dismissed the murder 7, charge against February 1997, Staples. jury On convicted felony Staples of murder. days jury felony-murder
Six after the returned the conviction of Staples, defendant made a motion to guilty pleas withdraw his on February hearing 1997. A on the motion was conducted on February Although alleged guilty 1997. defendant that his pleas should vacated pleading be because he was coerced into guilty, identify any defendant refused to individuals who had him, except threatened spoken to mention that he had person to a phone. who had threatened him over the Defendant also stated required plead guilty he was weight” “take most of the Staples protect family. and to himself and his Ultimately, the trial court guilty denied defendant’s motion to pleas, withdraw his concluding testimony plea hearing defendant’s at the credible, falsely more and that he during testified the motion hearing.
-B- Penalty Trial Jury penalty phase selection for the trial was conducted be- tween March 3 and March 1997. The State relied on four (1) aggravating Sergeant factors: that defendant murdered Gon- *18 servant, performance of zalez, in the public while Gonzalez was (2) 3c(4)(h); duties, Sergeant Gon- his official N.J.S.A. 2C:11 - engaged flight in after was zalez was murdered while defendant (3) that the murder 2C:11-3c(4)(g); committing burglary, N.J.S.A. escaping purpose for the Sergeant Gonzalez was committed trial, an- detection, punishment or confinement for apprehension, defendant, namely burgla- by offenses committed other offense or (4) 2C:11-3c(4)(f); theft, that defendant and ry and N.J.S.A. murder, 2C:11- of another N.J.S.A. previously had been convicted 3e(4)(a). regarding the events of presented evidence The State 1982, 6, in defendant also established that May 1995. The State killing year- second-degree murder for nineteen convicted of was he was sentenced to ten Pennsylvania in for which old woman twenty years prison. factor, defense, mitigating “catch-all” N.J.S.A.
The under the 2C:3c(5)(h), related to proffered mitigating circumstances mitigating evidence The enormous amount defendant’s life. childhood, tragic which was re- of defendant’s included evidence abuse, drug parents, his and verbal abuse from plete physical with breaking entering and and theft-type offenses such as petty twenty- ages of seventeen writing bad checks. Between member, three, motorcycle gang as an outlaw defendant lived Shortly regularly using drugs. committing multiple thefts and to five birthday, defendant was sentenced twenty-fourth his after aggravated ranging from years prison for offenses to ten sentences, defendant serving those burglary. While assault was used Pennsylvania murder that in 1982 for the was convicted killed an in this case. In defendant aggravating factor as an years. He for six and one-half placed inmate and was isolation it committed killing because was acquitted of the 1984 inmate testimony that presented expert The defense also in self-defense. disorder, and personality an antisocial suffered from defendant compass. no moral he had by the time he reached adulthood aggrava- jury unanimously found all four April On thirty- jury found also proffered the State. ting factors mitigating unanimously forty-eight seven of the factors of the mitigating non-unanimously. Despite large factors number of favor, mitigating jury found in factors defendant’s unanimous- ly aggravating together outweighed found that the four factors beyond mitigating factors a reasonable doubt. Defendant was accordingly sentenced to death.
II Jury Grand Indictment capital Defendant contends that murder indictment was (1) invalid and should have been for two dismissed reasons: there *19 prima showing Sergeant was no that defendant killed Gonza- facie (2) conduct; by lez his prosecutor own violated defen- process rights by suggesting, response grand dant’s due to a juror’s question, capital charge may that a murder be based on accomplice liability.
The trial court denied defendant’s motion to dismiss the indict- ment, jury ruling grand required that the was not to consider the requirement. “own conduct” The trial court also found that the prosecutor’s response grand juror’s question was not mis- leading, and that grand jury there was evidence before the that reasonably could have to an finding lead ultimate that either conduct, by defendant or co-defendant killed the victim his own though pointed strongly even the evidence “more to one than the other.”
-A- Sujficiency “Own Conduct” Evidence argues improper charge Defendant that it was for the State to Staples both him capital with murder when it was clear that only Sergeant one of them killed Gonzalez. Because the State was killer, not clear on which one of them was the defendant contends that prove there was insufficient evidence to that he committed Sergeant by Gonzalez’s murder his own conduct. Defendant also
439
Guideline
guideline
that
two of the Prosecutor’s
points out
Prosecutions, which
Capital
Designation
Homicide Cases for
Jersey County
Association
by the New
Prosecutors
adopted
prosecutor
Attorney
provides
that a
General
and the
proof beyond a reasonable doubt
that there is
“must be satisfied
defendant,
conduct,
directly
actively and
by his own
causing the death of the victim.”
participated in
specify
for murder
requires that an indictment
Rule 3:7-3b
(2)
2C:ll-3a(l),
by
murder as defined N.J.S.A.
whether the act is
(3),
the defendant
alleged
or not it is
or
and whether
conduct,
another to
by
paid
his or her own
committed the murder
murder,
network
drug-trafficking
of a
or is the leader
commit
conspiracy.
of a
the murder
furtherance
who secured
if there is
jury may return an indictment
grand
A
a crime.
showing that
the accused has committed
prima facie
Ass’n,
8, 27, 472 A.2d
Jersey
96 N.J.
New
Trade Waste
State v.
murder,
(1984).
knowing
purposeful or
For the crime of
whether the
required to state in the indictment
prosecutor was not
The “own
own conduct.
was committed
defendant’s
murder
knowing
or
purposeful
requirement is not an element
conduct”
penalty
murder;
for the death
“merely
triggering
device
it is
Gerald,
40, 99,
A.2d 792
v.
113 N.J.
phase of the trial.” State
561, 576,
Moore,
A
(1988)
N.J.Super.
504 .2d
(quoting State v.
Div.1985)).
(Law
*20
filing of
analogous to the
requirement is
The “own conduct”
file before
prosecutor
a
must
aggravating factors that
a notice of
stated:
capital
a
trial. We have
subjecting a
to
defendant
aggravating
to a
factors is the turn-key
capital
the notice
indictment,
Like the
allegations
from some
derive
is the notion that the
both
prosecution.
Implicit
some
that such a source exists compels
The need to ensure
verifiable source.
that such
and the defendant
the interest of
public
review satisfy
preliminary
mooring.
charges
trial without a factual
not
proceed
(1984).]
alsoWe
defendant’s contention that the State could
charge
Staples
him
capital
with
murder because it was
only
clear that
one of
Sergeant
them murdered
In
Gonzalez.
Clausell,
(1990),
State v.
121 N.J.
-B- Jury Instructions to Grand Prosecutor’s prosecutor misled the Defendant also contends capital may hable for jury thinking person that a be grand into posed in the being The issue is despite not the shooter. murder juror grand following colloquy between context of the prosecutor: being charged charges, with murder. two both With the first they’re
JUROR: MR. LYNCH: sir. Yes, got right. murder; I it That there’s felony I to make sure that JUROR: want together caused they is worked it’s worded they okay. way *22 death. is it fact that were there and But, murder,
somebody’s required they —the trigger, didn’t the does that constitute murder under the law? pull MR. There is under the law which I will review with LYNCH: accomplice liability wording charges, being alleged, the of these two is not you. By accomplice liability being alleged against direct is the two individuals. participation Accomplice charge could be considered the It could be made a liability by panel. separate against allegation or either that he an both defendant acted as but the accomplice, charges being in that’s set forth the that asked to consider that I’ve you’re reviewed with is direct and causation rather than you participation accomplice Is that to sir? Does that liability. your responsive question, help you? JUROR: I think so; yeah. prosecutor’s misleading
Defendant contends that the answer was grand jury because it not accomplice liability did inform the that apply capital argues does not to murder. Defendant if that the grand jury only had that understood the shooter could be convict- murder, capital they might ed of willing not have been to indict Staples, both him and but rather required would have more regarding evidence who was the shooter. foregoing colloquy
The prosecutor’s does not reveal that the responses improperly infringed upon grand jury’s the decision- making prosecutor’s function. response The made it clear that an sought charging indictment was both Staples Simon and with participation Sergeant direct in prosecu- Gonzalez’s murder. The explained liability tor accomplice alleged that was the two counts, accomplice liability murder but that by could be considered panel the grand juror other connections. The who asked the question Therefore, reject said the answer was clear. we defen- speculation grand jury dant’s that the was misled.
Ill Guilty Capital Voluntariness Plea to Murder Defendant right process contends that his to due of law was judge violated when accepted guilty plea. the trial his He claims guilty plea voluntarily that his was not made and that he was against family motivated argues threats his and himself. He despite plea his voluntary plea insistence his was at the hearing, totality of the information before the court at the time points to the finding of coercion. Defendant plea required of the persuaded the court to find following that should have evidence had coerced: that he been guilty the intervention after immediately announced his decision plead
1. Simon
officers;
of the Warlocks’
might
and could
of the case
he
well defeat
capital aspect
2. Simon believed
pleading
risking
good
his life by
capital
no
reason for
offer
purposefully
murder;
legal
exchange
plea;
3.
received no
benefit
Simon
urged
entering
duress and
under
4.
believed Simon
plea
Counsel
court not
accept
plea.
being
rights
importance of the constitutional
plea
that the
guilty
necessitates
*23
when a defendant enters
waived
in the
voluntary
plea
nature of the
be demonstrated
knowing and
Alabama,
appeal. Boykin v.
may
reviewed on
so that it
be
record
(1969).
1709, 1712,
“In
238, 243,
L.Ed.2d. 274
23
395
89 S.Ct.
U.S.
into
plea
a
must be entered
Jersey,
it is well-settled
New
Indeed,
re
have codified that
voluntarily
intelligently.
we
and
310, 318,
Crawley,
693
v.
149 N.J.
in Rule 3:9-2.” State
quirement
omitted).
(1997) (internal
v.
See also State
citations
859
A.2d
(1989)
1,
(stating
Barboza,
415,
“[a]
421 n.
aWhen was coercion, question is not whether defendant relevant many are —but defendants to external “sensitive consideration — i.e., voluntary, product a plead the decision instead whether (1st Pellerito, 1535, 878 F.2d 1541 v. of free will.” United States 184, denied, 862, L.Ed.2d Cir.1989), 112 116 502 U.S. S.Ct. cert. 444 (1991). guilty plea
145
of a
is not an
The withdrawal
“absolute
right”; it
of the trial court.
is matter within
broad discretion
(6th
236,
Cir.1987);
Spencer,
United States v.
836 F.2d
238
United
(1st Cir.1987).
Ramos,
v.
F.2d
States
810
311
Generally, representations
by
made
a defendant at
plea hearings concerning the voluntariness of the decision to
plead,
any findings
as well as
made
the trial court when
accepting
plea,
constitute a “formidable barrier” which defen
dant must overcome before he will be allowed to withdraw his
Allison,
63, 74,
1621, 1629,
plea. Blackledge v.
431 U.S.
97 S.Ct.
(1977).
We find no such abuse of discretion in this case. The trial presented court considered all of the support evidence defen guilty dant’s motion to withdraw plea. reviewing his After the hearing arguments, evidence and the the court stated that the essential issue it had to decide was whether defendant lied to the during two-day plea court process, or whether he had lied at hearing. the withdrawal The court concluded that based on “many observations of during defendant’s demeanor over hours” plea process, testimony defendant’s motion on “vague, nonspecific family asserted threat” made to members of his was “totally unpersuasive.” reject- flatly incredible and The trial court testimony, ed defendant’s and concluded that “he lied on the morning.” witness stand this The trial court concluded that application nothing defendant’s withdrawal more than an “attempted manipulation” justice system. of the criminal finding lying
The trial court’s that defendant was on the during hearing witness stand on his withdrawal motion was supported by the during plea statements defendant made his court, hearing. hearing, open At that both in camera and times, ways, defendant under oath numerous in numerous stated time, any that he had not in any been coerced or threatened at manner, by anyone. Defendant told the court that he wanted to plead guilty help Staples. plausible order to That awas explanation strong since there was evidence that defendant was trigger person. When asked about each of the statements defendant, by involving made and scenarios defendant in which a coercion, effectively explained court could find defendant each situation to the satisfaction of the trial court. court, appellate required give great As an we are
“
findings
‘deference to those
of the trial
are substan
[court] [that]
tially
opportunity
[its]
influenced
to hear and see the witnesses
case,
reviewing
have the
of the
“feel”
which a
court cannot
”
(1999)
Locurto,
enjoy.’
463, 471,
State v.
724 A.2d
N.J.
(1964)).
Johnson,
146, 161,
(quoting State v.
Thus, the trial we conclude that result, plea was made defendant’s clearly As a not erroneous. to properly denied the motion voluntarily trial court and the plea. vacate
IV Establishing Capital Murder Plea Simon’s that his if this were to find contends that even Court Defendant that he was the voluntary, plea his failed to establish plea was purposefully or know- the murder gunman or that he committed during argues that his statements Specifically, defendant ingly. recklessness, which is the mens hearing only admitted to plea knowing or manslaughter, purposeful not aggravated rea addition, impli- asserts that his statements In defendant murder. supported the evidence cating gunman as the were himself Therefore, to vacate his urges he the Court from the scene. sentence. conviction and death explain court defendant to taking plea, the trial asked
When plea guilty capital to murder. Defen- the factual basis for his car, Sergeant got out of the Gonza- responded that when he dant Sergeant gun defendant wanted Gonzalez going for his lez was him, pulled gun and shot the victim. away so defendant his from Sergeant Sergeant get Gonza- He stated that he shot Gonzalez him, go prison. back to away from because he did not want lez officer, responded to kill the defendant asked if he intended When me, guess I if away your him Honor. get “I intended to from him, you Sergeant shot killing know.” Defendant said he took him, standing within six feet of and he two times while Gonzalez chest. victim was struck the head or neck and thought the you guilty killing Gonzalez was asked “are Officer Defendant you doing practically certain to result knowing that what were responded: “I bodily injury?” or serious Defendant his death him, I injury yes, sir. Like going [a lot] I was to cause knew So, said, death. I didn’t think of that. I didn’t care about his yeah, okay, guilty, yes, sir.” *26 guilty
The trial court was plea, satisfied that defendant’s when conjunction considered in with other information made available to 3:9-2, pursuant capital the court to Rule established murder. In accepting plea, did, the trial court stated that defendant justification, without “knowingly purposely two fire shots into body Sergeant range [of at close ... and that Gonzalez] he did so ... his own conduct.” The trial court further stated that “pulled trigger defendant and fired the shot and that he so did practically under circumstances which it was certain and that he practically knew that it doing certain that that would result in bodily death, injury, serious if not and that the circumstances this, shots, one, under which range, he did at close two not to the area, upper body ... manifested a reckless as to indifference whether or not death would result.”
-A-
Mens Rea
Defendant contends that his factual statements to the trial court
regarding his mental state at
shooting only
the time of the
a
purposeful
satisfied
recklessness state of mind
or
knowing
argues
murder.
Jersey
The State
that because the New
years
present
Constitution was amended in
three
before the
murder,
permit capital punishment
to
purpose-
of a defendant who
ly
knowingly
bodily injury resulting
or
caused serious
in death as
death,
opposed to an
to
intent
cause
the law did not at the time of
present
require
guilty plea
murder
defendant to admit in his
Sergeant
Cooper, supra,
that he intended to kill
Gonzalez. See
306;
Harris,
525, 548,
N.J.S.A. 2C:2-2b defines the three mental states involved here. “A person knowingly respect acts with to a result of if his conduct his cause practically it certain that conduct will
he is aware that is 2C:2-2b(2). person “A purposefully acts such result.” N.J.S.A. if respect nature of or a it is with to the his conduct result thereof engage object his in conduct that n’ature or conscious 2C:2-2b(3) 2C:2-2b(l). cause such N.J.S.A. a result.” N.J.S.A. recklessly respect with material person states that acts to a “[a] consciously disregards when he a substantial element an offense unjustifiable will risk that the material element exists or be of such nature and result from his conduct. risk must that, degree considering purpose the nature and of the actor’s him, disregard in- conduct and the circumstances known its *27 gross volves a deviation from the standard of that a conduct in the actor’s person reasonable would observe situation.” Legislature bodily injury Because the has made serious 5,1993, subject penalty L. May murder to the death at least since Ill, amendment, following c. a 1992 constitutional the State prove purposefully knowingly does not that a or have defendant long killed a a murder as capital victim to establish as the State proves purposefully knowingly that the defendant or caused seri bodily resulting supra, in injury Cooper, ous 151 N.J. at death. 361, 376-77, 700A.2d 306. amendment murder
The 1992 constitutional made SBI eligible actor “purposely knowingly death when the or caus[es] Const, ¶I, resulting bodily injury serious in death.” N.J. art. 12. however, amendment, bodily injury.” That “serious did not define Penalty The 1993 to the Act implementing amendments Death existing 1992 constitutional amendment did not alter the Code’s bodily “bodily injury injury: definition of a serious which creates serious, substantial of death or causes permanent risk which disfigurement, protracted impairment or loss or of the function of any bodily organ.” member or N.J.S.A. 2C:11-1b. When bodily injury” of “serious are in Code’s definitions considered conjunction amendment, the 1992 it with constitutional becomes apparent only purposely knowingly bodily causing that or serious injury satisfy creates a risk of death” “which substantial can capital requirement. Objectively speaking, injury SBI murder an that a substantial death creates risk of means one from which Thus, practically death is certain to ensue. order to convict a murder, capital prosecutor prove defendant of a must that a SBI purposely knowingly injury defendant or caused an from which practically death is certain to ensue.
This
purposeful
Court addressed the difference between
Rose,
knowing
aggravated manslaughter
murder
v.
State
(1988).
454, 479-85,
112 N.J.
Similarly, in this trial case defendant informed the court shooting practically Sergeant that he was certain that Gonzalez argument would death. his cause his Defendant’s that intention get away was to officer him because not wish to from he did judge return does prison to not constitute rational basis for or jury recklessly, opposed to that to conclude defendant acted as thus, acting purposely knowingly, firing or two unaware that region Sergeant upper body shots within feet at six Gonzalez’s “practically bodily injury or that certain” to cause death serious results in death. words, informs to own common sense us
In addition defendant’s person upper body- in the someone shoots at another that when head, is purpose the shooter’s either region, such as neck and actually bodily injury that results in death or to to cause serious death, plausible explanation other especially where no is cause Although specifically claims he did not aim his given. defendant body upper region, he admits that gun Sergeant Gonzalez’s he purpose bullet hit the victim and that his in intended the to bodily injury Sergeant was to cause if shooting Gonzalez serious Moreover, under which defen- not to kill him. the circumstances shots, one, to range, the victim—at close two dant shot body region an indifference to whether the upper —manifested eventually instantly killed from the infliction victim was or died Therefore, injury. bodily plea established serious defendant’s that mens rea requisite purposeful knowing for he had the or murder 2C:11-3a(l) (2), pursuant to N.J.S.A. court and the trial did finding acknowledged in a mental not err that defendant state required capital for murder.
The State’s assertion based on the trial court’s statement that least, was, very disregard conduct defendant’s at the a reckless Sergeant death result from the whether Gonzalez’s would shots body, way saying his another simply fired into is when purposely practically shot the victim he was certain that defendant that language death would ensue. The source of used the trial Jury from Charge Capital court comes the Model Cases re- ‘Trigger’ Charge.” charge to as the Issue That ferred “Gerald provides: part guilty jurors agree To find defendant of murder all must unanimously knowingly knowingly or caused death or or defendant that he purposely purposely injury resulting as with reckless serious in death bodily caused indifference knowingly his conduct death, whether would cause or that he or caused purposely injury resulting jurors agree all serious but do not have to bodily death, long as to which form of murder is as all believe it was unanimously so one present subject of murder or the for a However, form other. defendant to be capital jurors agree knowing- all that the must defendant either or punishment, purposely resulting demonstrating injury in death while caused death or serious ly bodily as
reckless his conduct would cause death. whether indifference added.] [Emphasis
451
language undoubtedly
That
charge
was inserted into the
in an
attempt
jury
to inform the
that under the Code’s definition of
bodily injury,
every purposeful
knowing
serious
stabbing
or
or
shooting or conduct of an
satisfy
actor that results in death will
capital
requirements
the
opposed
SBI
murder
as
to intentional
2C:ll-3a(l)
(2).
words,
murder under N.J.S.A.
In other
since
amendment,
post-Gerald
capital
the
constitutional
does a SBI
require proof
purpose
murder
that the actor acted with
or knowl-
edge that
simple
death would result from his or
conduct?
her
charge
answer is no. The above
was formulated based on this
post-GeraZcZ
Court’s statement that after the
constitutional amend-
ment,
jury charge
clarify
the
“should
that the mental state re-
quired
capital
for a
conviction based on SBI murder should be
consonant with the federal constitutional
mandate
Tison v.
Arizona,
137,
1676,
(1987),
481
107
U.S.
S.Ct.
Tison and Enmund v. 458 U.S. S.Ct. (1982), persuaded L.Ed.2d 1140 the cases that the Court in Harris phrase “recklessly to use the indifferent to whether the result of death,” permitting conduct would be both dealt with statutes felony accomplice liability. sentence death murder based on liability capitally Those strict crimes occurred without the convict- sharing required ed kill or defendants intent to the intent to However, bodily injury upon inflict serious victims. rationale for the reckless indifference standard articulated unnecessary Tison and Enmund is to ensure death worthiness in capital given murders of our A death- SBI structure Code. Jersey eligible offense in New under the Code has built into it protections. other sufficient
First, felony eligible penalty murderers are not for the death Second, requirement under the Code. 2C:11-3c. N.J.S.A. “committed the homicidal act his own conduct” defendant liability generally precludes accomplice co-conspirator from *30 limited only exceptions are Ibid. The eligibility. triggering death the commission accomplice procured “who as an persons those to anything of promise payment by payment or [murder] of the Const, ¶ 2C:11-3c; I, 12; value,” N.J.S.A. art. pecuniary N.J. in furtherance of a trafficking network who narcotics of a leaders promise threat or command or traffic narcotics conspiracy to 2C:11-3c. of murder. N.J.S.A. the commission solicited liability provisions have co-conspirator accomplice and limited unnecessary protections re- that render built-in-protections quired by Tison and Enmund. phrase was used indifference
Although the reckless under which defendant to refer to the circumstances case present mind, I in a SB state of not refer to defendant’s acted and did manslaughter pursuant aggravated murder case which capital jury, of the charged to the the use is also 2C:111-4 N.J.S.A. defendant’s language to describe both the indifference reckless charge manslaughter and the aggravated in the state of mind capital in the I he or she acted SB under which circumstances to some confusion. Because charge conceivably could lead murder murder, there was no guilty plea capital involved a this case finding that defendant had the in the trial court’s confusion Nonetheless, the “Ger- capital for murder. requisite mental state by the [Jury] Charge” should be re-examined ‘Trigger’ Issue ald Judges Capital on Causes. Trial Committee
-B- Guilty Basis Plea Factual for guilty plea Next, the factual basis for his argues defendant First, no contends that there was inadequate. defendant gunman that he was the support his statement factual basis identify trigger evidence to the State lacked sufficient because Second, court erred when it argues defendant that the person. finding that the evidence corroborated make a factual failed to reject trigger person. both that he was the We defendant’s claim claims. provides,
Rule 3:9-2
in pertinent part,
that “[t]he
court,
discretion,
in its
... shall
accept
plea
[a]
without first
determining by
...
inquiry of the defendant and
...
others
See,
Eisenman,
there is a factual
plea.”
e.g.,
basis for the
State v.
462, 471,
(1998)
153 N.J.
A.
(observing
710 2d 441
that defendant
may provide
guilty
factual
plea during plea colloquy).
basis
murder, however,
When a
charged
capital
defendant is
with
“no
required
factual basis shall be
from the
long
defendant” as
as the
court
is satisfied that a factual
plea
basis for the
has been
proofs
Jackson,
established
presented.
from the
State v.
118 N.J.
484, 488,
(1990);
Davis,
In only the there was not a factual basis to support guilty plea, defendant’s expressly but also the trial court finding made a factual supported that the evidence defendant’s claim that gunman. During plea hearing, he was the the defen specifically dant passenger stated that he exited the side of the officer, vehicle to talk to the Staples driving, that was that he “4, seconds, had been out of the car “less than 10 [seconds]”— maybe ... [range],” [s]omewhere that before he shot the officer twice. He informed the court Sergeant going that Gonzalez “was gun just for his I away wanted him from me ... I went for mine firing and shot him.” Defendant gun even admitted his within six feet or so of the victim.
Further, the evidence from the scenes of the murder and the support arrest passenger defendant’s statement that he was the because he exited passenger’s the vehicle from the side at the scene of the arrest. in possession Defendant was of the murder weapon when sup- he ran from the vehicle. Forensic evidence shot Sergeant Gonzalez was
ports defendant’s statement feet or less. twice and that he was shot from a distance six recognized similarities defen- The trial court all of the between plea hearing and the extrinsic evidence. dant’s statements at the statements, reviewing a tran- listening plea After to defendant’s Sergeant just script Clay a few taped of a statement recorded shooting, investigative Clay’s report, and hours after the autopsy trial court report, the observed: along [Simon] establish, I’m has a sufficient factual satisfied that basis provided guilty. have evidence,
with exhibits that been submitted he is I’m tc murder count without did, satisfied that with that he respect capital justification, knowingly fire 2 shots into the whatsoever, body any purposefully range, standing close within 6 feet arms —his feet, within several and with his holding gun extended, arm that fired these 2 shots into the body was partially Sergeant and that he did his own so, therefore, by Gonzalez conduct. We, therefore, agree with trial court that was a there guilty plea sufficient factual and that basis defendant’s corroborating evidence that defendant’s admission that establishes Roach, trustworthy. trigger person he was the See v. State denied, 208, 229, 1021, 117 146 N.J. 680 A.2d cert. 519 U.S. (1996) (holding infer- S.Ct. 136 L.Ed.2d “evidence and jury ences to from the were be drawn evidence sufficient for the trustworthy”). determine that the confession was V *32 Aggravating Murder” “Prior Factor c(4)(a) January The factor prior aggravating murder involved a 13,1974, Pennsylvania which murder for defendant was convict second-degree argues ed of murder. He because the Penn sylvania congruent manslaughter both and conviction with 2C:11-3a, some murder under it forms of N.J.S.A. and because whether, jury Pennsyl charge cannot be the determined under vania, aggravated manslaughter he was convicted of murder or law, Jersey Pennsylvania under New conviction should aggravating have been as an factor. used pertinent provision Act, The Penalty our Death 2C:11-3c(4)(a), provides N.J.S.A. that one of aggravating justifying imposition factors penalty of the death is that “[t]he convicted, time, defendant has any been of another murder.” Legislature Whether the foreign second-degree intended that a murder conviction that prior occurred to the enactment of our Penalty Death Act in 1982 could be aggravating used as an factor has to be statutory determined from the language, legislative history, and our decisional law. Because no clear emerges answer itself, statutory language must, therefore, from the “[w]e resort to intrinsic and extrinsic statutory interpretation aids of glean legislative 630, 635, intent.” Biegenwald, State v. 96 N.J. 477 A.2d (1984). First, we will consider the historical antecedents to c(4)(a) statutory language that will enlightening. be somewhat Brown, 405, 415, (1956). State v. 22 N.J. 126 A.2d161
-A- (Commission) The Criminal Law Revision Commission in 1971 Code). proposed Jersey the New Penal (Proposed Code When began the Commission study, its the murder statutes in New Jersey Pennsylvania fact, virtually were In identical. New Jersey Pennsylvania had followed the model when it divided murder into first and degrees. Report second II Final the New Jersey (1971) (Final Criminal Law Revision Commission 168 Report). proposed by The Code as the Commission redefined murder to consist of criminal homicides that were committed purposely, knowingly, recklessly or under circumstances manifest- ing life, extreme indifference to the value of human felony 1971). murder. (Proposed N.J.S.A. 2C:11-3a Draft Proposed penalty Code also established the death provided eligibility purposely death for a committed murder and 2C:11-3b, -3a(l), -3a(4) felony murder. N.J.S.A. (Proposed 1971). Draft proposed “aggravating One of the circumstances” subject that would penalty defendant to the death was the fact “murder, previously he or she had been convicted of man- *33 aggravated sodomy, kidnap- slaughter, robbery, aggravated rape, involving person.” of the ping or other crime the use violence to 1971). 2C:ll-7c(2) (Proposed Draft N.J.S.A. in Proposed of Code were enacted provisions
Some the the (Code). L. Jersey as the Code Justice New of Criminal 1,1979. However, September Proposed Code’s c. effective provisions penalty aggravating circumstances were death addition, adopted as In reduced the part of Code. Code in the scope Proposed of murder from contained Code defining as follows: murder [manslaughter] criminal homicide consti- a. as N.J.S. 2C:ll-4 Except provided
tutes murder when: (1) injury resulting death; The actor causes death or bodily or serious purposely (2) knowingly injury resulting bodily death; actor causes death or serious oi- CS) [commits murder.] It is committed when the actor felony
[N.J.S.A. 2C:11-3a.] Thus, types “pur- the Code as enacted defines three of murder: (with bodily intent kill poseful murder or inflict serious (with injury), knowing knowledge/awareness murder that death or occur), bodily injury felony Cooper, serious will murder.” supra, 151 N.J. at 700A.2d 306.
Approximately years two and after became one-half the Code effective, Penalty introduced in as Death Act was the Senate Bill prior 112. That Bill included a as an Senate No. also murder aggravating Specifically, provided: factor. it has “The defendant previously been convicted murder for which a sentence of life imprisonment imposable, [felony] or death was or under murder 2C:ll-3(a)(3).” Bill 112 lines Before enact- Senate No. 121-25. ment, Attorney suggested proposed language General that the “(a) provide previously be broadened to defendant has been [t]he Judiciary Hearing convicted of murder.” Public Before Senate (Death (Feb. 26, Bill Penalty) Committee on Senate No. 112 at 14 1982).
Thus, Code, Proposed previously felon under convicted death-eligibility trigger degrees three included the common law *34 homicide, murder, first-degree second-degree murder and man- felonies; slaughter; any most of the common-law and other crimes Penalty that involved the use of violence. the When Death Act effective, previous- was introduced after the Code had become the ly aggravating prior convicted felon factor was reduced to mur- imprisonment ders “for which a of sentence life or death was 2C:11-3(a)(3).” imposable, [felony] or murder under Senate Bill Although No. 112 lines 121-25. the record does not reflect the analysis legal inspired Attorney suggest, the General or Legislature accept suggestion, modifying the the that all terms prior aggravating dropped, the murder factor we be find substan- legal change. tial reasons for the prior aggravating
That the
murder
factor contained in Senate
Bill
No.
was limited to those for which a sentence of life
imprisonment
imposed
or a sentence of death could have been
that,
law,
pre-Code
only
meant
first-degree
under
murder was
contemplated. Felony
first-degree
murder was
murder. N.J.S.A.
1978);
360,
(repealed
Cooper, supra,
2A:113-2 to -4
151 N.J. at
law,
prior
first-degree
only
-B-
early sentencing options
persuaded
also
that the Code’s
We are
c(4)(a) prior murder
support
the conclusion that
for murder
foreign judgments of convictions for
includes
aggravating factor
degree.
inception of the
From the
murder in the first or second
(1) a
sentencing options for murder:
sen-
there were two
Code
thirty
the defendant must .serve fifteen
years
of which
tence
(2)
between
an extended term sentence
years
parole,
without
life,
mandatory
twenty-five
minimum of
thirty years
with a
2C:11-3b;
ineligibility, N.J.S.A.
N.J.S.A. 2C:43-
years
parole
*35
7a(l)
sentencing
extended term
option
A third
of a different
and b.
2C:11-3b;
in the Code as enacted
1978. N.J.S.A.
was available
521,
option
supra,
at
This Court
2A,
repealed,
prior
murder
our former Title
now
satisfies
2C:11-3c(4)(a).
aggravating
factor under N.J.S.A.
conviction
(1987).
Ramseur,
123, 272-75,
106
460 aggravating factor.” statutory conviction itself is
because the 276, sound for A That rationale remains Id. 524 .2d 188. the statute refers to a foreign convictions because domestic of another murder.” N.J.S.A. time, any “at prior conviction 2C:11-3c(4)(a). prior proves the existence of a murder
Ordinarily, the State by simply introducing into aggravating factor conviction as an 2C:44-4d; State v. judgment of conviction. N.J.S.A. evidence a (1991). 1, 13, judgment Biegenwald, 126 172 N.J. 594 A.2d during into evidence prior murder is introduced conviction for a aiding purpose a trial for the limited penalty phase impose a life or death jury in of whether its determination prior murder conviction is not relevant Because a sentence. jury guilt, with definitions of guilt, penalty and a is not concerned prior conviction cannot comprised murder the elements deliberating prior murder conviction to the affect the value of the jury phase. penalty prior foreign convic-
Similarly,
states have concluded that
other
purposes with-
for sentence enhancement
tions can be established
facts,
foreign convictions
looking
provided
that the
out
behind
requirement.
satisfy
statutory aggravating factor
the home state’s
State,
(1983);
People v.
551,
163, 165
v.
Ark.
660 S.W.2d
Miller
280
Guest,
698,
255,
(1986),
503 N.E.2d
72,
115 Ill.2d
104 Ill.Dec.
267
denied,
(1987);
L.Ed.2d 746
1010,
3241,
107 S.Ct.
cert.
483 U.S.
97
249,
761,
(1981),
Taylor,
cert.
State v.
304 N.C.
283 S.E.2d
780
(1983);
denied,
3552,
77 L.Ed.2d 1213, 103
463 U.S.
S.Ct.
State,
802,
Com-
(Okla.Crim.App.1993);
v.
808-09
Grasso
857 P.2d
Maxwell,
499, 501-02,
cert.
monwealth v.
534 Pa.
A.2d
(1993).
denied,
558, 126
L.Ed.2d 995, 114
510 U.S.
S.Ct.
South
Supreme
conclusion when its
Court
Carolina reached
different
Virginia second-degree murder
fell between South
ruled that a
Norris,
State v.
manslaughter.
murder and
Carolina’s crimes of
(1985),
overruled on other
339, 344-45
285 S.C.
328 S.E.2d
(1991).
Torrence,
grounds,
v.
305 S.C.
406 S.E.2d
State
*37
461
followed,
approach
Even if the South Carolina
was
and we
conviction,
foreign
were to look
prior Pennsylvania
behind the
requirements
prior
murder satisfies the
aggrava
our
murder
factor,
2C:ll-3c(4)(a).
ting
N.J.S.A.
Defendant was tried in Penn
sylvania for
second-degree
first and
girlfriend,
murder of a former
Dusenberg.
13,
Beth Smith
January
The murder occurred on
time,
1974. At that
Jersey
Pennsylvania
New
and
defined first
second-degree
essentially
and
murder
the same.
v.
State
Williams,
105, 114-15,
(1959);
30 N.J.
9
A.2d
N.J.S.A.
1978).
(repealed
1974,
January
2A:113-2
As of
both states divided
second-degree
1974,
murder into first and
January
offenses.
In
Pennsylvania
murder
was defined
as follows:
(a)
degree.
Murder of the first
criminal homicide constitutes murder of the
—A
degree
lying
first
when it is committed
means of
or
or
by
poison,
by
wait,
any
killing.
other
willful,
kind of
A
deliberate,
criminal homicide
premeditated
degree
engaged
constitutes murder of the first
if the actor is
in or is an accomplice
flight
committing,
in the commission
an
of, or
or
after
or
commit,
attempt
attempting to commit
or deviate sexual
intercourse
force or
robbery,
rape,
by
burglary,
kidnapping.
threat
force, arson,
or
(b)
degree.
Murder of the second
other kinds of murder shall be murder of
—All
degree.
degree
degree.
the second
Murder of the second
is a
of the first
felony
(West 1998) (Historical
Notes).]
§
[18 Pa. Cons.Stat. Ann.
and Statutory
Pennsylvania required malice to be established as an element of
second-degree
both first and
murder in 1974.
v.
Commonwealth
(1975).
Boyd, 461 Pa.
334 A.2d
Consistent with
law,
Pennsylvania
jury charge
the trial court in its
defined malice
harm,
express
great bodily
as either “an
intent to kill or inflict
or
heart,
disposition,
cruelty,
of a “wickedness of
hardness of
reck
duty1
consequences
regardless
lessness of
and a mind
of social
indicating
unjustified disregard
probability
an
for the
of death or
great bodily harm
an
extreme indifference to the value of
Ibid,
Carroll,
(quoting
human
life.”
Commonwealth v.
Pa.
(1963)).
premeditation. Commonwealth (1947). 319 1979, charged in murder was of the Code
Prior to enactment
designate whether the
statutory
jury
required
was
form. The
sentencing purposes.
second-degree for
was first or
murder
Paris,
(E.
1883);
State,
347,
A.
State v.
358 &
v.
45 N.J.L.
Graves
Div.1949).
(Law
383, 385,
The law
New defined to, of, bodily any grievous harm to cause the death or intention (b) [knowledge that the act which causes person, ... [and/or] to, of, grievous bodily harm probably will cause the death or death ..., by although knowledge accompanied such is person, some bodily harm or grievous death or is caused indifference whether Gardner, not, by may v. 51 or a wish that it not be caused.” State (1968) Britain, 444, 458, (quoting Royal 242 1 N.J. A.2d Great (1953)). 1949-1953, Capital Report 27 Commission on Punishment define, the essence of malice is As difficult as malice has been to Williams, 27, an or state of mind.” v. 29 N.J. “evil wicked State (1959). 36, 148A.2d 22 reject speculation Pennsylvania defendant’s that the second-
We
no
than man-
degree murder conviction could have been
more
First,
voluntary
or
slaughter
passion/provocation
under our Code.
manslaughter
option
Pennsylvania
an
in 1974 was
as
available
to,
rejected
jury in
presented
by,
the trial. Malice as
Pennsylvania
Jersey
not an
defined
and New
element
406,
Rife,
manslaughter. Commonwealth v.
454 Pa.
312 A.2d
Williams,
22; Brown,
(1973);
supra, 29
at
148 A.2d
N.J.
161;
Guild,
supra, 22
v.
Second,
second-degree
Pennsylvania
in
the victim of the
murder
gunshot
being
died from a
wound to the head after
shot once in
the neck and once
the head. The fatal bullet entered between
eyes.
presented
jury
her
evidence
that
There was
defen-
pulled gun
dant
a
from his waistband and shot the victim after she
derogatory
Although
charged
had
him a
name.
called
he
with
murder,
first-degree
second-degree
jury reasonably
could
premeditation
have found the absence of
or deliberation or both
response.
based on the suddenness of defendant’s
Code,
Third,
reasonably
our
conduct
under
defendant’s
satisfy
purposeful
knowing
can be viewed as sufficient to
a
or
2C:ll-3a(l)
(2).
manslaughter.
rather than
N.J.S.A.
or
murder
malice,
Pennsylvania
phrase
When the
court defined
use
consequences
regardless
“recklessness of
and a mind
of social
unjustifiable
duty indicating
disregard
probability
an
for the
bodily
great
death or
harm and an extreme indifference to the
life,”
being equivalent
not come close to
value of human
does
required
manslaughter
standard
for
under
the recklessness
Pennsylvania
phrase
charge
in the
malice
N.J.S.A. 2C:ll-4.
that included “recklessness” when viewed
the context of shoot
eyes
closely
ing
through
the victim
the neck and between the
more
acting purposely
knowingly,
satisfies the definitions of
or
N.J.S.A.
2C:2-2b(l)
(2),
than the definition of recklessness N.J.S.A.
2C:2-2b(3).
distinguished from
generally
can
be
Recklessness
degree
certainty
in-
knowingly based on the
purposely and
knowingly
of mind involve near
Purposely and
states
volved.
a
that
certainty,
involves an awareness of
risk
while recklessness
certainty. Shooting
than
the victim
probability
of a
rather
is
certainty[
eyes
“practical
that death would
]
created a
between
Breakiron,
591, 606,
VI Jury Selection given penalty-phase Defendant contends he should be new right impartial jury. trial because he was denied his to an He argues potential the trial court failed to excuse nine because cause, jurors challenges peremptory he was forced to use nine *40 Beebe, Jr., Jenson, Braddock, Harvey to excuse Jeff John Antho- Pomorski, ny Timothy McGrorey, Davenport, Arthur Fens- David Frerks, ka, Barry LeFevre. claims that the Susan and Defendant peremptory challenges premature- him court forced to exhaust his jurors— ly ultimately seating and that led the of three biased Laudenbach, Almyer Neigh, Patricia Diane Carlin. twenty-five The record reveals that defendant used a total of Initially, peremptory challenges and the State used thirteen. twenty challenges. granted peremptory defendant was Once exercised, challenges he asked for and received four those were twenty challenges. additional Defendant used seven of his first challenges jurors challenged during to excuse he had for cause
465 Braddoek, Beebe, Jr., Jensen, Harvey Antho- voir dire: Jeff John Pomorski, ny Davenport, Timothy McGrorey, and Arthur David defendant, challenges four additional allotted to Fenska. Of the LeFevre, Barry used to excuse Susan Frerks and both two were during challenged of whom defendant had voir dire. When defen- Carlin, juror challenge, Patricia another dant used his fourth dire, jury challenged had on voir was seated box. defendant peremptory challenge, The then exercised a which caused State Strano, juror challenged during had Michelle another defendant dire, jury voir to be seated on the box. Although requested challenges. then two additional
Defendant request, granted court refused that it the State and defendant challenge challenge each. Defendant used his one additional juror excuse Michelle Strano. The State excused one more after Thus, that, passed opportunity challenge. and then on its last concluded, jury Almyer Neigh, selection was Diane when the Laudenbach, and Patricia Carlin became members of the sworn jury.
-A-
Jurors Not Excused
Cause
Texas,
Jersey
adopted
New
has
the Adams v.
448 U.S.
Witt,
(1980),
38, 100
2521,
Wainwright
possess considerable discretion jurors,” inability appellate “the prospective which stems from fully dynamics proceeding.” appreciate of a trial courts to II, supra, 459, DiFrisco 137 N.J. at 645A.2d 734.
Thus,
juror
necessarily predicated
is
qualification
since
jurors
unique
his
upon
judge’s
trial
observation of the
demeanor,
credibility and
the trial court’s
position to evaluate
juror
jury pool
to include or exclude a
from the
will
be
decision
Ibid.;
Hunt, State v.
an abuse of discretion.
reversed absent
(1989); Ramseur, supra,
330, 348,
106 N.J. at
N.J.
A.2d 1259
determining
It is not reversible error to fail to excuse a
for
by
peremptorily
cause who is thereafter
dismissed
a defendant
peremptory challenges
long
who exhausts all his
as
as the deliber
II,
supra,
467, 470,
DiFrisco
137 N.J. at
ating jury
impartial.
is
However,
juror
Fenska decision, from start to want to listen to “the whole case he would and willing would and able to consider finish” and that he be mind, making mitigating evidence in his final weigh, open with an Moreover, had a understand- once Fenska better determination. evidence, the court phase mitigating and he told ing penalty of the that weigh mitigating
understanding would have factors, you a little more about mitigating just guilty, weigh factors is but I have to those. It’s not person along [The is] death other factors for the death penalty with the four penalty____ not automatic. “all the facts” Similarly, indicated he would need Pomorski Although not certain how making his decision. he was before character give of a defendant’s weight much he would evidence give be able to such evidence background, he said he would and aggravating against it open, his fair consideration and balance factors. weight much he would also uncertain about how
Jensen was of a defendant’s character and back- give mitigating evidence repeatedly stated that he would have to “hear both ground, but he willing making and that he would be before a decision sides” open He mitigating evidence with an mind. to consider the able mitigating evidence more that he would find certain further stated evidence; however, that he explained he compelling than other automatically impose penalty. the death would not mitigating evi- also indicated that he would consider Braddoek However, he, background. dence of a defendant’s character too, gauge weight much he ability in his how felt restricted he had no idea give mitigating evidence because would certain presented. He also stated that he would evidence would be what him to use and any that the court instructed “use information” open with an mind. he would use that information repeatedly that the nature of the crime would Frerks indicated determining factor in her decision. She stated that not be the sole involved,” person including a would want to consider “the she fact, background. despite In upbringing defendant’s defen- totally attempt dant’s to convince this Court Frerks was factors, mitigating very offense-oriented in terms of Frerks was background.” In- open people’s much to ideas that “factor[] deed, long person’s that as as circumstances in a Frerks believed background of “what kind of were related to determination *43 person up being why they do that at that this ended and would time,” point give weight. in then she would its evidence due totality responses, having on the of their and had the Based opportunity to their observe demeanor the context the overall setting, qualified jurors, fully trial court each of those five setting doing forth its reasons for so in each instance. The court straightforward ... determined that Braddoek was “articulate not evasive” and would be able to follow the law as instructed the court. The trial court found that Pomorski demonstrated a understanding” juror, “sincere of his role as a and that based on him, qualitative its “overall evaluation” of it was satisfied that his personal substantially ability impair beliefs “would not his to Although law.” trial court follow the found both Fenska and calls,” mitigat- “close it that Jensen concluded both would consider ing fairly, open give weight with an it evidence mind and whatever they appropriate. each deemed The court found to Frerks be “open[J throughout questioning” candid and sincere ... her “any mitigation” presented that she would consider evidence her.
Considering
give
the deference this Court must
to the trial
jurors, especially
court’s evaluation of those
when the court’s
record,
thoroughly spelled
nothing
reasons are
out in the
in this
discretion,
suggests
record
that
the trial court abused its
or
erroneously
credibility,
qualification
evaluated the
demeanor and
Harris,
supra,
jurors.
See
N.J.
any
potential
of those five
II,
333;
supra,
DiFrisco
137 N.J.
662A.2d
at
645A.2d
Therefore,
Hunt,
734;
1259.
we
supra,
With to substantially pre-disposed Beebe was impaired because However, police a was killed. penalty the death since officer ward officers, regard” police for he had a “certain while Beebe stated protection,” he also that believing they [his] “there for stated are of the and that any opinion on the outcome case he had not formed though penalty against vote the death even willing he would be fact, In he would a officer. Beebe indicated police the victim was penalty that the happy voting for the death not “be about” Moreover, he “would stated [him].” decision be difficult background that he so want know about defendant’s he would “things going on there that there could determine whether were they commit warp point to the would” person ... where could crimes. heinous dire, court Beebe’s stated
At the conclusion of voir way or not biased one was “a balanced individual and Beebe significant fact that saw the found Beebe another.” court considering background, even when importance in defendant’s *44 officer was killed. police dire, reject conten- defendant’s reviewing
After Beebe’s voir we totality his voir that Beebe should have been excused. tion found, was, that as the trial court “a balanced showed Beebe dire fact, In was way Beebe one or another.” individual not biased thought voting for the he highly favorable to defendant because Regardless, find that for him. we penalty would be difficult death failing to excuse its when trial court did not abuse discretion for cause. Beebe McGrorey ground on challenges Timothy
Defendant lack of premeditation and he he would consider that stated that determining aggravating factors whether as when remorse impose penalty. However, the death ques- when defense counsel statement, McGrorey tioned him about his that indicated he would automatically penalty vote for the death even where the premeditated murder was and the killer lacked remorse. He explained that “background” he would want to hear the of the decision, defendant making any before only and that he would aggravating presented consider the factors to him.
In qualifying McGrorey, lay the trial court persons noted that knowledge with no “commonly” of the law premeditation consider important an issue in deciding whether the penalty might death be appropriate Nonetheless, an punishment. the court was satisfied that McGrorey premeditation would not use aggravating as an factor and would apply follow the law and it as the court would instruct him.
Again, we find no abuse of discretion the trial court. Look- ing totality dire, McGrorey’s voir it appears that he would willing have been apply and able to the law as instructed.
As for Davenport, David defendant contends that he should have been dismissed for cause fully because he never view, expressed abandoned the as questionnaire, in his thirty years prison rarely would be punishment sufficient for inten However, dire, tional murder. during voir Davenport stated that he would “feel imposing comfortable” thirty-year minimum prison “any circumstances,” sentence under set of “[i]f that was the law.” judge
The trial Davenport found to be a “a sincere and credible any individual who was way trying not in to fabricate answers or fashion particular way information, answers in a or conceal who being forthright responses sincere that he gave.” reviewing Davenport’s When voir dire in entirety, its it is clear following him, important the law was and that he have, have, could and would personal feelings set his aside as the court would have instructed him to carry do order to out his *45 Therefore, find trial court did juror. as we that the functions juror cause. failing potential in not err to excuse this Barry that LeFevre should have Finally, defendant claims dire that he for cause because his voir demonstrated been excused death,” type “hard-put to vote for person who was not of on the something plea” heard about “a radio. and because he had dire, support posi not defendant’s LeFevre’s voir however does thirty-year that a minimum opinion tions. was of LeFevre sufficiently be a harsh sentence because prison sentence could older,” they grow change as and where people possibly some “can give person chance to do appropriate “you have that that small automatically not vote for the it.” He further stated that he would that be penalty, although, punishment he believed would death mitigating circumstances that appropriate nothing, “if there’s no did.” also noted that he can defend from what he He [defendant] interfere his deliberation personal not let his views with would case to be treated as an individual.” process because “each has plea,” about “a exposure In terms LeFevre’s to information he that defendant nothing record indicates that heard that he had attempted plea. his LeFevre stated to withdraw case,” directly this defendant’s “something,” “not with about heard “alleged “possibly regarding plea with case.” accomplice,” his But, anything could not about pressed, when he said that he recall “brief,” very plea heard was and was and that whatever he basically accomplice. alleged about defendant’s although expressed LeFevre
The trial court concluded viewpoints,” capable he was strong type law and “somewhat order evaluation both being “open-minded and balanced his plea, regard to the aggravating mitigating factors.” With heard was it was satisfied that what LeFevre court stated that event, that, defendant, any whatever he Staples, about enough “anything for him to recall of substance.” was not heard voir agree trial assessment of LeFevre’s court’s We with jurors who knew about defendant’s Although potential all dire. *46 attempt dismissed, change plea to his appears were it from the record that anything LeFevre did not know about defendant’s attempt change plea barely his and could anything remember story about the he had heard. We are satisfied that LeFevre could have open Therefore, deliberated with an mind. we find no abuse discretion. sum, reject
In we defendant’s given contention that he should be a penalty phase new trial right because he was denied his to an impartial jury. We find that the trial court failing did not err in any to exclude jurors of the nine challenged in appeal. this
-B- Biased Jurors Defendant contends that deliberating jurors three were They biased. are included in group jurors defendant should have excused for cause. argues Almyer Defendant Neigh that system believed that the was too lenient on criminals and that the protections constitutional of the accused help serve to the accused victims, that courts do nothing help leading unjust defendant, results. According to Neigh said that he impose would death unless defendant could convince him that there was a reason for the shooting.
Of the
allegedly
three
jurors,
biased deliberating
Neigh was
among
jurors
the first sixteen
Although
seated.
defendant had
originally challenged Neigh
dire,
during
cause
by-
voir
he
passed him twenty-five times
Neigh
after
jury
was seated in the
Thus,
box.
his claim of bias is certainly
by
belied
the record.
II, supra,
471-73,
DiFrisco
With jury impartial as indicated her answer on the she was not automatically impose would questionnaire which said she of an purposeful for “the willful murder death sentence further that Laudenbaeh person.” innocent Defendant contends regarding would vote for gave inconsistent answers whether she penalty considering after all the evidence she the death if willfully person. killed an innocent that defendant convinced *47 Again, by is belied the record because defendant’s claim bias passed by twenty-three peremptorily to counsel her times defense Furthermore, twenty-three it clear that challenge people. other is have excused for cause. Laudenbaeh Laudenbaeh should not been not automatic penalty the death should be stated that she believed willing background and that she would be to consider defendant’s and character. Carlin, placed that she
As for defendant contends prove not the proof on defendant to that death was burden of killing. Defendant punishment for an intentional appropriate aside that belief argues her that she could set that statements right merely attempts to for answer. We her search were penalty the death disagree. Carlin that she believed that stated further that only be “for some cases.” She indicated should used individually that information had to treated each case be relevant to her evaluation background was about defendant’s that she was Carlin stated appropriate Importantly, sentence. point she had at that open-minded given and that the information other, time, was leaning in one direction or the but she was not in the middle. somewhere addition, that defendant could
In record reveals review re- challenge to twenty-fifth peremptory his and last have used Carlin, he Michelle Strano. move but instead chose remove was removed because her husband Defendant removed Strano automatic for he believed death should be cause on the basis that felt that has more than one time. Defendant someone who killed to vote pressure kind of from her husband might feel some Strano however, court, for death on properly based his views. The trial rejected argument juror qualified this because each has be on merits, his or her own “no and because there was basis or reason comply to think” that Strano not would with the court’s instruction Therefore, not to discuss the matter her with husband. since cause, neither Carlin nor Strano have should been removed for not support record does defendant’s assertion Carlin was biased. simply point
This Court cannot sanction defendant’s of view. gain To do so allow penalty-phase would a defendant to a new trial juror simply arguing objectionable, one while another objectionable. system was more designed Our is for a defendant Therefore, jury, jury. to have a fair perfect not the we cannot grant relief where a defendant has had more than twenty 3(d) peremptory challenges jurors Rule allows and the 1:8— objects required which defendant were to be removed for Thus, reject cause. we defendant’s contention that three biased jurors jury. his sat on
VII Excusing Prospective Clevenger *48 Juror James argues Defendant erroneously that the trial court excluded juror prospective Clevenger. James He contends that unlike the juror cause, failure to a dismiss biased for the erroneous exclusion juror prospective of a opposition because of his or her to the death penalty Thus, can never be harmless error. he seeks a reversal of his death sentence and a penalty-phase new trial. Texas, supra,
In Adams v.
Supreme
the United States
juror
Court
may
held that “a
not be challenged for cause based on
his
capital punishment
views about
unless those views would
prevent
substantially
the.performance
or
impair
of his duties as a
juror in accordance with his instructions and his oath.” 448 U.S.
45, 100
2526,
581;
at
S.Ct.
65 L.Ed.2d
Georgia,
see Davis v.
429
123,
122,
399, 400,
(1976);
U.S.
97 S.Ct.
475
a
(stating
A.2d
that
supra,
A.2d 734. This is because
of the
subjective
upon “an observation
is a
decision based
biased
juror’s
of voir dire —observations
during
demeanor
the course
making.”
v.
appellate
precluded
is
from
State
which an
court
(1979).
55, 63,
During Clevenger, a stated his voir James penalty. in the When asked whether did not believe death from prevent would him personal conscience beliefs matters he sentence, thought he Clevenger stated that imposing a death penalty. death could vote
However, questioned prosecution, Cleven- when further “religious qualms” imposing about ger explained he had seventeen, only in age of or penalty since the sixteen death an committed “execution cases the defendant had rare where imposing death he felt style” murder would have comfortable imposing penalty the death penalty. He stated that since further determination, a hard subjective he would have is believed he fact, In his civic duties. reconciling religious his beliefs with time this “tough time” in he would have a repeatedly he told the court *49 respect. dire,
Based on his voir the trial court decided to Cleven- excuse ger Clevenger for imposing cause. court told that since the penalty death would have forced him decide to between his personal duty, conscience and his civic he be would excused. The stated, that, you’re to going you court “I’m not ask to do so excused.” reject Clevenger
We defendant’s contention that was re for in moved cause because he did the penalty. believe death explanation gave Clevenger, From the the court trial it is clear that he was not removed because he believed penalty. death Instead, he Clevenger’s was removed because it was obvious that punishment capital impaired views about substantially would have law, ability his despite to follow the pronouncement his he that thought impose he could death if penalty he was forced to Singletary, make that decision. See supra, N.J. at A 402 .2d (stating potential “juror’s professions impartiality will not always cause”). Thus, insulate him from exeusal court the trial forcing Clevenger was correct in not to person decide between his al his duty conscience and civic because it was not clear which one' Furthermore, prevailed. would have since the trial court was position accurately sincerity assess the credibility of Cle venger’s statements, pay we due deference its evaluation. Therefore, we conclude that defendant is not entitled to a reversal of his death sentence or a penalty-phase new trial on based Clevenger exeusal of for cause.
VIII Jury Regarding Mitigating Instructions Factors Defendant contends for the on appeal first time his that rights constitutional to a fair trial were violated when trial judge jury instructed the that mitigating its decision to consider a unanimous, factor should be spare order defendant from a jury sentence of death the must mitigating find factors outweighed aggravating factors. Because defendant
477
penalty-phase
object
jury
during the
to the
instruction
did not
standard,
that
trial,
plain error. Under
the issue is raised as
clearly
jury
that the
instruction
must demonstrate
defendant
a
it
erroneous,
jury to reach
verdict
that
it caused the
Jordan,
409,
147
v.
N.J.
not
reached. State
otherwise would
have
Macon,
325, 335,
(1997);
273 A.2d
422,
v.
57
A .2d
N.J.
688
97
State
satisfy
(1971);
is
to
that standard.
1
R.
unable
2:10-2. Defendant
jurors
objective
jury
assist the
of
instructions is to
a
in order to reach
presented
law to the facts
applying
in
the
491,
734;
II,
at
645 A.2d
State
supra, 137 N.J.
verdict. DiFrisco
I).
(Martini
(1993)
Martini,
271,
176,
1208
131
619 A.2d
v.
N.J.
instructions,
must
jury
the court
appellate court
When an
reviews
in
of the entire
challenged language
the
the context
examine
396,
141, 146-47,
Naughten, 414
94
Cupp
S.Ct.
charge.
v.
U.S.
491,
II,
(1973);
supra, 137
at
400,
DiFrisco
N.J.
In
a
be
a
beyond a
must
impose
penalty, it
be satisfied
the death
order
outweigh
statutory aggravating factors
that the
reasonable doubt
2C:11-3c(3)(a);
v.
State
mitigating factors.
all of the
N.J.S.A.
13,
(1987).
63-67,
Aggravating
A.2d 130
524
Biegenwald, 106 N.J.
Bey, 112
unanimously
v.
by
jury.
the
State
must be found
factors
Zola,
(1988)
159,
II);
v.
112
123,
(Bey
A.2d
State
N.J.
548
887
1022,
denied,
(1988),
489
A.2d
cert.
U.S.
N.J.
548
1022
hand,
(1989).
other
the
103 L.Ed.2d
On
S.Ct.
II,
Bey
supra,
non-unanimously.
found
factors can be
mitigating
any
159-61,
long
juror finds
As
as one
In the this defendant court: by the trial made which the decision one, choice is one, asked to indicate and only
You are here below jury is jury. unanimously choices. First choice is, of You have three outweigh aggravating fail or factors to exist that factor proven satisfied any mitigating factor or factors. So all 12 that conclude that there are one or you if of mitigating mitigating judgment more and that those each factor's factors outweigh aggravating saying or you that’s the other equal factors, it, way agree then that death is not the you unanimously sentence. appropriate added.]
[Emphasis Defendant contends the trial court committed error reversible (1) telling jurors: that all of them had conclude that there factors, (2) one or mitigating are more mitigating such *51 factor or equal outweigh factors must be to or aggravating the factors. The by asserting notwithstanding State answers that the quoted partial charge, above trial repeatedly the court informed jury that the it did not have be in finding mitigating to unanimous factors. portion
The charge objectionable of the defendant finds given portion at the of charge end the of explaining the the functions aggravating factors, of mitigating the how the works, balancing of many those factors options and how verdict jury the could choose from in its following deliberations. The excerpts charge from the it jury make clear that the was instruct- ed that it not need be unanimous to find the of existence a mitigating factor or that mitigating equal the factors had to to be outweigh or aggravating the factors in order defendant to avoid the death penalty. charge The stated: aggravating As I stated earlier, unlike factors, the law does not unanim- require finding mitigating with the respect to a ity all should Obviously, you of factor. engage in regarding aggravating a full mitigating discussion complete both agreement factors the extent You should reasonably possible. to reach attempt mitigating the on a question whether particular does or does not exist of factor finding However, the law does not require with to the unanimity respect of mitigating Rather, each of must you individually determine whether or factors. mitigating weigh not each factor mitigating exists and then it, them, or factors that against aggravating the is, factors which have been found all 12 unanimously by
jurors. If after a full discussion find that are not you you unanimous on or the existence mitigating nonexistence of a the factor, will record foreperson last vote on your that on the verdict form question in the boxes which are shown there number as or mitigating no. yes However, remember that a whether exists is not to be factor majority. the decided So for a on by vote either one is to 3, that doesn’t mean it a exists as it pure means nine three yes, yes, no. That will say say be written in mitigating for the factors, number nine, number if yes three, no that’s what the given thorough it and is have a full and discussion to attempted final vote and you agreement among full time of If after a and reasonable reach yourself. just agreement, the final reach a unanimous then record you discussion can’t you mitigating factors. vote on weighing weigh aggravating the factors which have In will the process you against mitigating If that find. you found the factors each been unanimously aggravating on of an then none of factor, you are not unanimous the you presence weigh against mitigating aggravating So the factor the evidence. with that may weighing it all in for that factor to be considered at the factors, process, order jurors. If a all must found to exist reasonable doubt unanimously be beyond juror disregarded that it has must even if as individual believe you it be one not, mitigating considers however, you to a each factor, been With respect proven. weigh mitigating if to exist and factors, factor or find factors, any, you whatever against aggravating a factors that have been beyond and balance that proven, all 12. doubt, reasonable unanimously by jury options three explained court to the the verdict then following the manner: juror’s juror mitigating that is not one which in mind even
If finds factor outweighed aggravating the or then factors, a reasonable doubt by beyond factor jury jury A of the sentence the to death. may consequence defendant jury finding aggravating more and no member of the of one or factors presence finding mitigating mean all members of of a factor would that existence jury agree is death. appropriate punishment aggravating or has that the factor If find the state failed any you prove mitigating if outweigh or cannot factors reasonable doubt beyond you factors *52 the then the punishment a unanimous verdict on reach question punishment, shall be the defendant. imprisonment aggravating amplify option first that the attempt In an to the mitigating, court used the outweigh the the trial factors do not objec- objectionable. language finds That quoted that defendant jury even charge simply the that portion of the .informed tionable one more jury unanimously agreed the existence of or if on the or factors, jurors more that one if one or found mitigating and the equal outweighed to or mitigating of the factors were more factors, if the same as aggravating or that result would be factor appropriate the unanimously agreed that death is not jury the had words, as a charge the is considered In other when sentence. whole, jury required notwithstanding the that the was fact factors, the effect on finding mitigating the be unanimous penalty. can the same: No death ultimate verdict be jury whole, Based on charge our review of a find the as we no jury Loftin, basis to conclude that the was In confused. State v. jury non-unanimously we observed when a that finds the existence factors, mitigating “compelling jury that is evidence” that the was not on permissibility non-unanimity confused the on miti- (1996). gating 295, 376, fact, factors. 146 N.J. In A.2d jury the was mitigating non-unanimous on 19 of the 31 Loftin presented factors to them. that principle We reaffirmed Coo- per, supra, merit, and concluded that claim defendant’s lacked considering jury eigh- the was non-unanimous on fourteen of the mitigating teen factors. 151 N.J. at 700A.2d 306. case, In present jury the non-unanimity the also knew that on mitigating permissible. factors was jury The found 47 of the 126 mitigating addition, non-unanimously. factors assuming In even arguendo jury charge that confusing, this the trial court jurors explained occasions, to the on individually several as group, non-unanimity that mitigating on permissible. factors was
Similarly, claim defendant’s that the trial court erred when it mitigating stated that the equal factor or factors must be or outweigh aggravating the factors lacks also merit. With regard factors, aggravating the mitigating only there are (1) possibilities: three the aggravating may outweigh factors (2) factors; (3) mitigating may equal; the factors be mitigating may outweigh aggravating factors factors. option verdict, first in a results death while the other two result a non-death verdict. There no telling is difference between jury that a only death verdict if they results find aggravating outweigh factors the mitigating telling factors and that them they non-death verdict if only results mitigating find equal greater factors are or aggravating than the factors. Based foregoing, reject on the we defendant’s contention rights his to a fair trial were violated when the court trial *53 jury instructed the on mitigating factors.
481 IX Jury Process Selection Random stay a grant the to to that trial court’s refusal Defendant claims County employing a random Hunterdon was consider whether to be tried process right his constitutional jury violated selection community. the A a cross-section of jury represents that in given population the of the expert testified size defense County, high of the same incidence of members Hunterdon attempt in family jury duty suggested for an error called court to jurors. wanted the trial randomly Defendant select county’s whether the stay give investigate him time to grant jury process was non-random. selection jury array are challenges to be provides that to the
Rule 1:8-3
juror is
Relaxation of
any individual
examined.”
initiated “before
only
prima
there is a
granted
where
the rule should be
facie
right
fair
to a
prejudice
actual
to defendant’s
showing of
270,
Butler,
1:1-2;
N.J.Super.
155
impartial jury. R.
State v.
result, time limitations are
As a
(App.Div.1978).
last of and the before final the sixteen jurors to were be selected and the actual trial was scheduled to begin. request delay properly a for for was denied several First, untimely.
reasons.
request
the
was
Defendant had several
identify jurors
By
months to
with
last
simply
the same
names.
reviewing
any
March,
the list at
time
and
between November
would
an “ample opportunity”
challenge
defendant
have had
to
the
jury array
any
juror
before
individual
was examined. See State v.
McClain,
488, 497,
N.J.Super.
263
(App.Div.),
Whether judge, or ... would some official office, authority county prosecutor’s appropriate right it is of the Hunterdon have to be since heard, procedures notified challenged manager’s vicinage being jury ..., which are office this County *55 called into here. question any hearing on necessary part a of the Input from such officials is a motion. merits of such Long Gerald did not State v.
Finally, this Court
cases,
despite
stay.
the Court found that
the
a
In both
mandate
jury
procedures, in the absence
apparent problems in the
selection
clear evi-
deviations and no
any
or ill-intentioned
purposeful
of
violations,
statutory
there was no basis
or constitutional
dence of
State
v.
panel
were not warranted.
either
and reversals
strike
Gerald,
supra,
(1990);
470-71,
Long,
439,
119 N.J.
Therefore, defen- properly denied we find that the trial court stay. request for a dant’s
X Death-Penalty Constitutionality Statute the of Act, Penalty Jersey’s Death that New Defendant claims —3i, Eighth the Amendment. N.J.S.A. 2C:11-3c violates fails to death-penalty statute this claim is that basis for eligible individuals for adequately define the class of “narrow and meaningful appellate system a of provide and fails “to for death” Thus, sentence should insists that his death review.” defendant imprisonment. a of be reduced to term upheld rejected claim and has repeatedly this This Court has supra, Loftin, constitutionality death-penalty statute. of I, supra, 131 N.J. 677; at 221- Martini 146 N.J. at A.2d Ramseur, 185-97, supra, 106 N.J. 1208; 524 A.2d A.2d retreating persuasive no reason presented 188. has Defendant We, therefore, from upholding that view. reaffirm our decisions constitutionality Penalty Death Act.
XI Customary International Law Act, Jersey’s Penalty Defendant contends that New Death —3i, customary N.J.S.A. 2C:ll-3c to violates international law and should He be invalidated. maintains that there is a trend in international law penalty. toward abolition the death De years further fendant contends that in recent N.J.S.A. 2C:11- 3c(6), statute, 2C:11-3i, impact the victim provision and N.J.S.A. causing making bodily injury resulting conduct serious in death eligible for penalty, expansions the death were to the Death Penalty defendant, Act. According expansions those resulted in result, customary violation of international law. As a he insists violation requires this a reversal his sentence. disagree. previously rejected argument
We
The Court
this
State v. Nelson when we stated that
law does not
“international
require
Jersey’s
invalidation
penalty.”
of New
death
N.J.
*56
—
512,
(1998),
denied,
U.S. —,
890,
XII Cruel and Proportionality Unusual Punishment and Review
Defendant contends that a sentence of death constitutes a disproportionate punishment, and excessive violating the federal guarantees and against state constitutional cruel and unusual punishment. Ramseur, supra, We adhere our in decision rejected N.J. at in A.2d which arguments we that the Eighth statute violated the Amendment of the United States or paragraph Jersey Constitution Article of12 the New Consti We, however, tution. preserve note and challenge defendant’s the will his death sentence and conduct proportionality of sentence, 2C:ll-3e, ain his N.J.S.A. proportionality review separate proceeding.
XIII
CONCLUSION noncapital capital convictions and We affirm defendant’s request this Court conduct grant defendant’s sentences. We sentence, he be and that death proportionality review his argument make at that time. full allowed in judge trial erred argues cross-appeal that the on The State summarizing an supplemental report a allowing into evidence in regarding the lawyer conditions a interview with doctor spent six units defendant Pennsylvania prison isolation where prison. would years in That issue years twenty his and one-half we penalty trial. Because only in event of a new be relevant convictions, we need address affirming are defendant’s issue.
Affirmed. II, I,
O’HERN, J., concurring Parts and IV-XII III and XIII. dissenting Parts to Part except respect with opinion
I in the of the Court concur III, trial court was not concludes that the in which the Court to withdraw rejecting application clearly defendant’s erroneous wrong has question, the Court plea. By posing his guilty is question The real whether wrong conclusion. reached the place. in the first accepted plea trial court should have I accepting a duty a court imposes non-delegable on Rule 3:9-2 *57 factual “that there is a satisfy independently to itself guilty plea voluntarily, not as the plea plea that the is made for the and basis not any promises or inducements any or of result of threats 486 record, understanding
disclosed on
an
and with
of the nature
charge
consequences
of the
plea.” (Emphasis
and the
of the
added.)
counterpart,
The federal
Federal Rule Criminal Pro-
11,
requirements
cedure
mirrors our
acceptance
rule’s
guilty pleas.
genesis
Such rules have their
in the nature of a
guilty plea.
explained:
Chief Justice Warren has
[guilty]
A defendant who enters such a
waives several constitu-
plea simultaneously
rights, including
against
privilege
right
tional
his
his
self-incrimination,
compulsory
jury,
right
to trial
his
and
to confront his
For
to
accusers.
this waiver
be valid
under
the Due Process
it must be “an
Clause,
intentional
or
relinquishment
right
privilege.”
of a
abandonment
known
or
v. Zerbst,
Johnson
in violation of due
and is therefore void.
process
v. United
394
[McCarthy
States,
459, 466,
U.S.
89 S.Ct.
22
1166, 1171,
L.Ed.2d
(1969) (footnotes omitted).]
418, 425
is,
law is
same.
guilty plea
Our
“A
process
violates due
thus, constitutionally
if it
voluntary
defective
is not
knowing.”
Barboza,
415,
(1989)
v.
1,
State
115
421
N.J.
n.
Although the record discloses the trial court engaged a colloquy defendant, with discharge the court did indepen- not its obligation dent plea voluntary. to assure that the was in fact The record must “instill confidence” that a waiver of constitutional voluntary. rights was Ready, United States v. 82 F.3d (2d Cir.1996). permitted Defendant Simon play Robert was game cat-and-mouse with the court that undermined court’s independent obligation plea voluntary. determine if the trial put rest,” court “failed to these matters to and failed to ambiguities” “deal with People these Simon’s answers. v. Jenkins, (1979). 72 A.D.2d 421 N.Y.S.2d if
“Even
plead
defendant
guilty
wishe[s]
to a crime he or
commit,
she did not
may
Smullen,
he or
she
do so.” State v.
*58
(1990).
408, 415,
The most conclusive
N.J.
Such refused During the in camera proceedings, the defendant crime. The court plead guilty. him court what had made to state on its accept plea that was obligation independent had an permitted court involuntary. That not done because the face underlying facts. Simon to withhold his later it when made majority significant finds Simon had prove that threats plea, he failed motion to withdraw the at Ante at A.2d made to establish duress. been sufficient Judge course not. plea an invalid valid? Of Does that make 17. Douglas Ginsburg of the District of Columbia Court of Circuit Appeals has set analysis forth the correct of a motion withdraw guilty plea plea If plea first itself. taken did —look rule, plea not conform to the must be vacated. *59 greater begin [W]e will achieve likely also if we our economy perhaps clarity assessing such cases whether analysis the defendant’s was taken in by plea taking with Rule 11. If we determine that there was no error in the of compliance the defendant’s we will be to plea, reluctant reverse the district extremely court, legally cognizable charges against even if out the defendant makes a defense to the ais,
him. That defendant who fails to show some error under Rule 11 has to shoulder an burden if he is to extremely heavy ultimately prevail. focusing This more structured first the most on the inquiry indeed, important, — determinative factor in all our decisions to date—will both the conserve resources guidance of the bench and better to it bar, the and we as provide the adopt today analyzing framework a district court’s denial a presumptive presentence 32(d). guilty motion to withdraw a under Rule It will plea conserve resources because the court will not need to examine all three issues in exhaustively every a case. As our will result, decisions inform the of what to bar is make out required confusing implying each element on without matters that appeal, by there are among trade-offs to be made them. This will simple sequential inquiry properly focus the efforts of defense counsel and the Government the issue upon key raised denying guilty of an the order by motion to withdraw a appeal Has a plea: knowingly right charges brought defendant waived his to meet voluntarily against him? (D.C.Cir.1995).] [United F.3d 1203, 1208 States v. 47 Cray, lingering There is justifiably resentment —and so—that defen- playing games dant was with the court and hoodwinked the State trying Staples into problem first. The is that we do not execute people they play games. life, because we respect Because dowe permit anyone, defense, not prosecution inject or to the irrational capital-sentencing into process. penalty unique, “The death is Kiett, in procedure.” 483, 499, result and State v. 121 N.J. 582 (1990); Koedatich, 225, A.2d 630 see 329-30, also State v. 112 N.J. (1988) 548 939 (holding A.2d that defendant in capital may ease right not present mitigating during waive penalty evidence phase), denied, 1017, 109 813, 102 cert. U.S. 488 S.Ct. L.Ed.2d 803 (1989), remand, appeal 513, (1990). 118 N.J. 572 622 A.2d after face, On plea its Simon’s did comply with Rule 3:9-2. The
489 penalty cases do not allow applicable to death “unique” procedures exception.1 for an
II the time of totality before the court at of the information rejection Contrary to the plea. of the plea required Simon’s involving a review of an exercise treatment of this issue as Court’s discretion, v. respect plenary. in this is State jurisdiction our 1, Dugger, Perez, 1, v. (App.1992); P.2d LoConte 122 Idaho (11th denied, Cir.), 109 S.Ct. 488 U.S. 847 F.2d cert. (1988). failed to describe the The record 102 L.Ed.2d plea. Among the factors underlying facts led to Simon’s that totality of the informa- upon show relied defendant tion court was counter indicative voluntariness before trial are that follow. the facts on guilty to the murder indictment plead
Simon decided to joint- begin day jury selection was scheduled same preceding Staples. On the capital murder trial of Simon *60 1996, of presidents the the local and national Friday, October day, passed Staples in That same appeared had court. Warlocks containing telephone number of the paper a the slip on to of Simon Saturday, a local On October president local of the Warlocks. pressing of were reported that members the Warlocks newspaper Monday, announced On October Simon plead guilty. to Simon 1 in case need not an that a defendant a provide We do allow capital exception a 3:9-2 in a Rule states part: factual basis plea. charged death, no a crime factual by is with When the defendant punishable guilty a of to of be from the defendant before entiy plea basis shall required court offense, the is to a included provided a offense or lesser capital for the that there is a factual basis plea. from satisfied the presented proofs singular to is a defendant the that exposed rationale for this exception "The anything that an to state can support not be death should required penalty rendering his own death sentence." aggravating factor; need not aid in he (Handler, (1990) J., 253, 285, N.J. 571 A.2d DiFrisco, v. State (citing concurring dissenting part) Comment, Court in Supreme part Governing Pressler, Rules the Procedure, on Criminal reprinted Committee (1989)). the State New Jersey, Courts of of plead
his to guilty. urged delay intention to entry Counsel Simon plea they of the until to on appeal could this Court the issue severing Staples’s trial Simon’s from trial. Counsel told the court answered, good that Simon It “what would it do. wouldn’t make back____” any prison get difference. I’d be in shiv Simon, colloquy At between the court and the following exchanged occurred: thing
THE COURT: What is this the shiv in about the back? You said it was out of context. making wrong, [counsel] SIMON: I him was comment to that if—if I’m tell the Judge. go thing I like I could to court and we said, could beat this whole or do going whatever to we’re do and then two minutes out of after I walk the courtroom and I’m back in could stab me in the That’s prison somebody back. life is. way threatening going You wasn’t know, it like me that were to somebody they telling stab me in I love threats, back. Honor. I’m the truth. your you I love going I something. them cause then know some a’s to That’s try type to threaten person somebody. THE Did COURT: that you say your [that didn’t know about it attorneys you guilty] he would until plead Friday yourself? right. SIMON: That’s
THE COURT: What did that mean? anything just
SIMON: I can’t tell you. if it means or to Really, but I you them, can’t tell you. something THE Did COURT: someone inform about you between Thursday [October 4] 3 and Friday that know didn’t did learn you you Thursday, and, therefore, know about on Friday? Something long. SIMON: like that. I can mean, talk all it and all you around day telling nothing I’m not what and, it’s you like, it’s a threat happened where toward me or I know. anybody Simon believed he defeat capital aspect could of the case and no risking offered reason for pleading his life capital colloquy murder. The continued:
THE COURT: Did you tell as to your attorneys, that they me, reported you recognize, that believe them, that have a fail- you they whether shot, said a they good good good shot or avoiding shot, real shot, but some reasonable shot at pretty a death because— phase, penalty SIMON: I them that. told for the to think that it would be hard prosecutor
THE COURT: Because they trigger jurors were the a reasonable doubt that you all twelve beyond convince man. I told them that. SIMON: something that the truth that that was COURT: Do feel Was way? THE you that? told them that do believe that, you really when you getting not even a I’d have a shot at I that if we went to court SIMON: believe like want mean, I I don’t care. I I don’t said, but I don’t care. Like death penalty, get I the death So, life in like if I Okay? penalty, to rest of my prison. spend get I don’t care. it. Who cares? giving which have, the shot that you you COURT: reason for So, up THE your acknowledge having the death is is a shot at not to face penalty, at least reasonable just don’t care? you I don’t care. SIMON: plea. legal exchange for received no benefit
Simon plea Staples: was only benefit of the to guilty, it to does have to do with [I]s COURT: it desire expressed plead THE your having exonerating on his face the of a death sentence from to possibility Staples part? against like to know, me. You I’d That could but don’t use SIMON: help, beginning, in the I can’t see the both I I can’t like I said see, would. help Staples. going No for that. down the tubes. reason of us your if I didn’t accept plea THE COURT: do think would you happen What just reject through think guilty? and I it? What do you tried to it What if you put would happen? off of I want to some of burden I I have no idea. take SIMON: don’t know. cause I think them out You that would know, help Shovel’s [Staples’s] family. this going clown that’s a whole bunch of money out put they’re put —have representing Shovel. do want to me in mind your why you tell own you THE COURT: Is because — and his family? take this burden off Shovel right thing to do. I think that would be the SIMON: Cause from else to do that? under any THE COURT: Are you pressure anyone Not at all. SIMON: through his family? Shovel or THE COURT: Either good gesture trying guy last here. that’s the Maybe No. I’m to be nice SIMON: life, be able to do in know. 2 you I’ll my acting believing out that defendant Even the had difficulty prosecutor genuine "Mr. has unsavory He later said: Simon very concern for Staples. *62 lawyers entering plea Simon’s believed that Simon was the urged They under and accept plea. duress the court not to the requested proceedings also that the seal protect court to they Simon and asked to be removed as that counsel so could testify interest, without a their replacement conflict of should necessary testimony counsel find it to offer their at a future date. The court to refused remove them as counsel and took no testimo- ny during other hearing. than the in camera
Finally, plead Simon himself indicated that he not want did but plead expressly had to told the court he could not doing reveal his reason so. something change
THE it COURT: Was that has caused mind you your about pleading guilty? SIMON: it Of course was. I did it. something
THE Does it COURT: have to do with Mr. and his —whatever Staples might his outcome in this case be? saying SIMON: I I’m no you, told more about it, your Honor. It was something give I can care of I take whatever it is. personal you word it’s my nothing anything. just I where was I’m threatened or worried about It’s going things. I’m way way to do —it’s hearing plea, At the in-court on the it sugges- was the court’s tions to defendant that plea. furnished the reasons for the Defen- dant enough was smart accept realize the court would plea if repeated language suggested he by the court. After defense counsel legal identified inconsistencies between Simon’s capital murder, account and the elements of subjected the court Simon to questioning. eventually further Simon stated that he gun had fired the with the intention of hitting the officer. De- fense then counsel stated that “the forensics this case are essentially inconsistent with the just recitation that Mr. Simon rendered to this court.” officer, Gonzales,
Recall that Sergeant Ippolito deceased was security found with Simon’s Staples’s social card and driver’s background criminal and it’s uncomfortable to conclude that he perhaps would something colleague, do noble for a friend and but it’s not impossible.” leg through a bullet hole them. under his with license in the registration insurance cards were found automobile through expert a bullet them. A forensic vehicle with hole a distance of that one of the two shots fired at testified *63 There was perhaps twenty inches from the insurance card. of Mr. “gun powder grains found on the insurance card of evidence apparently police in the hand of the officer” Staples, that was Creseitelli, Sergeant shot. Officer Kenneth William when he was neighbor, Lyman, John all observed Officer Gonzalez Clay, and a during stop. No one talking to the driver at times the different talking passenger. to the officer the saw sitting passenger on the side of testified that he was Simon just officer stepped out of the car when he saw the ear and had court, gun. got his told the “I out with reaching for Simon say something and trying to talk him and I started to of to intent go mine.” gun, to for his so then I went for as I did he started at a of six he two shots distance about Simon testified that fired court, pressed by Simon Sergeant When feet from Gonzalez. answered, my body. Maybe when I was foot from “He about six foot from that.” gun might out he have been three held the unwilling help to further defense counsel was Simon Because more plea, declined the court’s offer to be “improve” his counsel specific objections: about his that this is Honor, intend to do for this reason. We believe that, I don’t
Well, your begin I to Mr. -willthen and I believe that as soon as do that Simon a coerced plea get what to this Honor’s consistent with he needs plea answer your questions just through, ... evaluation of the as when I to the court explained why expert shooting [was statement] with ... and then of the inconsistent defendant’s distance thought little closer. I’m I it was six but it was a said, well, feet, maybe Mr. Simon going to set him for that. not up who society accept to that those that it is difficult for I realize killing shocking and heinous crime convicted stand be society to afford them the benefit expect officer should police why insist that Society will understand we should its laws. 1208, as Cray, supra, ... F. 3d at inquiry”, 47 there be a “textbook “So, said, like plea voluntary. He himself whether Simon’s I care.” penalty, get I it. Who cares? don’t get if I the death Why should we care if he did not only care? We can recall what Justice Handler said on another “Although perhaps occasion: unwittingly, in failing imposed to insist that death be with the full all, protection measure of constitutional or not at we lose a significant part and irredeemable of our civilization built on the IV), Bey (Bey rule of law.” State v. 334, 430, 137 N.J. 645 A.2d (1994) (Handler, J., denied, cert. dissenting), 513 U.S. (1995). 115 S.Ct. 130 L.Ed.2d A report Penalty of the Death Information Center stated sixty-nine wrongful capital convictions have been documented Rovella, in the United States since 1976. David E. Illinois Expands Right DNA Testing: Seven Men’s Release From Spurs J., Death Row Bipartisan Support, in Three Years Nat’l L. 11, 1997, Aug. at A6. Thus far in the administration of the death penalty, Jersey spared New has sentencing been the error of wrong person to death. This is no doubt due to commitment system justice our judiciary, of criminal the bar and law —the *64 enforcement officials —to the indispensable observance “of those Harris, safeguards State v. guilt.” the ascertainment of 122, 201, (1998). N.J. 716 A.2d Among indispensable those safeguards for the guilt responsibility ascertainment of is the in a capital plea case to insure that voluntary. is The record in this requirement. case failed to meet that Simon, effect, court, in “My said to the plea voluntary, is Your Honor, but I court, have to do it.” That saying is like to the “I crime, plead guilty Honor, want to to the Your but I did not do it.” may accept plea. No court such a STEIN, JJ., join HANDLER and in opinion. this HANDLER, J., dissenting.
I
expressed
dissent for the reasons
opinions
in the
of Justices
I, too,
O’Hern and
Accordingly,
Stein.1
believe that defendant’s
1 I concur
notwithstanding
Stein,
in the
of Justice
opinion
that the
my position
(1987),
non vult
at issue
Ramseur,
in State v.
plea
N.J.
I
A.
the record
vacated because
sentence must be
Defendant’s death
capital murder
guilty
plea
that defendant’s
not establish
does
(O’Hern, J.,
488-94,
see id. at
737A.2d at 42
in part and
concurring
part) (noting
in
suggestions
that “it was the court’s
defendant that
plea”),
furnished the reasons for the
were lies.
Consequently,
plea
unacceptable.
Simon’s
Boykin
See
v.
Alabama,
238, 242,
1709, 1711-12,
395 U.S.
89 S.Ct.
23 L.Ed.2d
(1969)
274,
(holding
guilty plea
279
is invalid unless defendant
showing
plea
makes affirmative
on record that
knowing
is
and
Howard,
voluntary);
113, 122,
State v.
110 N.J.
497
capital punishment
recognized that because
previously
has
Court
capital
in
to insure
special
must be taken
cases
“unique,”
is
care
charges
pleading understands the nature of the
the defendant
that
Kiett,
483,
121
plea.
v.
N.J.
consequences
and
of the
See State
(1990)
495-96, 499,
(allowing
withdraw
defendant to
Wrongful recognized convictions are likely to be in more cases by See, guilty pleas adjudicated settled than in e.g., cases trial. Laufer, Innocence, William S. The Rhetoric 70 Wash. L.Rev. of (1995) (“Plea bargain contracts increase the likelihood of convicting as compared fully adjudicated innocents with cases that testimony are decided after particular of witnesses to the event has truth-checking been heard and all of the vigorous devices of a used.”) (footnote adversary procedure omitted); have been Ste- Schulhofer, phen Disaster, Bargaining J. Plea as 101 Yale L.J. (1992) (“[P]lea bargaining seriously impairs public inter- punishment est effective of separation crime and in accurate of innocent.”). guilty from the It recognized wrong- is also as capital prosecutions, sometimes prevalent ful are convictions See, al., e.g., et In pleas. Michael Radelet guilty the result of (1992) who (listing cases of innocent defendants Spite Innocence of convicted). wrongfully were case, only risk wrongful conviction is not capital In a of plea is the execution a defendant’s coerced associated with —so pros- is a people of innocent person. The execution an innocent capital punishment strongest proponents pect that even the Gross, Why Risks Death: R. cannot abide. See Samuel Cases, 44 Capital are Common Erroneous Convictions Buff. (1996). guilty of of defendants 471-72 The execution L.Rev. murder, capital punish- eligible not capital murder and but intolerable; society ment, accepts the death insofar as equally is few, only especially for a punishment penalty, it is reserved as out, possibility points O’Hern egregious crimes. As Justice pleas, and we is attendant to coerced executing person an innocent *68 far, recognition of the perhaps due to our fortunate thus have been cases, to have avoided safeguards capital in heightened needed (O’Hern, 493-94, A.2d at 43-44 at a disaster. See ante such this part). in The fact that J., concurring dissenting part in more reason provides all the very possibility that presents case rejected. have been plea should why questionable defendant’s II any in case plainly be involuntariness Failing what would to find executed has not the defendant to be ignoring the risk that has, murder, vigilantly than rather capital the Court committed defendant, constitu- diluted his capital this rights of protecting by opinion, damage the Court’s The done protections. tional The Court’s however, injustice to Simon. beyond manifest goes body penalty layer to a of death incremental adds another decision evolutionary but the enhancement not the precedent that reflects More capital defendants. protections for gradual diminishment to soften prepotency has the alarmingly, opinion the Court’s for all citizens protective bulwark provide that general standards case, charged capital under our criminal law. Because this is a opinion tempting precedent; the Court’s easily becomes it can be authority ordinary justify marshalled as in an criminal case to non-capital conviction of a defendant. The Court’s decision then only weakens the protect standards needed to defendants in cases, capital protections long accepted it erodes the fundamental part aas basic of our criminal law. Court, problem begins here,
The
when the
as
subscribes to a
single
generally applicable
cases,
in
standard
all criminal
that it
apply
cases,
scrupulously
capital
aims to
more
in
gives
but then
at
most token
protection
capital
deference to enhanced
defen-
contexts,
dants. Even in certain
capital prosecution
other
where
standard,
adopts
legal
the Court
a different and
may
stricter
it
apply
often,
seems,
in
Quite
the standard
a lax manner.
it
we
principles
protection
state the
in capital
enhanced
eases and
is,
operate inversely;
actually
then
provide capital
defen-
Indeed,
protection.
dants with less
may
prone
we
be
to this
course,
though
See,
even
consciously opposed
we are
e.g.,
to it.
id.
(O’Hern, J.,
501
570-93,
55,
515,
737 A.2d
84-
Timmendequas, 161 N.J.
in
v.
State
Koedatich
(1999),
implicitly approves of the
in
the Court
97
which
Koedatich,
571,
supra, 112
(citing
at
This Court’s treatment
(1987),
13,
follows a similar
If protections capital token deference to enhanced for defen- weakening dants has such a capital jurispru- effect on this Court’s dence, may one must be concerned with the effect those decisions upon general legal justice system. have criminal standards in our cases, penalty they Death because are exemplars assumed to be prosecutions, frequently authority fair are cited as to sustain convictions; such, they criminal as filter back into and influence general case, ordinary criminal law. In an criminal in which a non-capital alleges defendant like circumstances as for the basis protectable rights, may the court capital look to the similar precedent example appropriate, as an of the presumably height- ened, court, assuming standard to be followed. The the standard non-capital for rigorous its case to be less capital than the precedent, understandably could compunction following feel no in precedent, by application even if in capital ease the easy identify standard was weakened. It gauge is this prevalence effect. When the proposition cases cited for a are however, capital, and those cases are most authority often cited as convictions, affirming for suggests capital jurisprudence is coloring being by discretion exercised criminal trial courts. In sum, by failing apply protection enhanced standards of capital so, professing defendants while to do Court creates likely climate which trial courts are apply more reduced protection standards all criminal cases. application
Such is the stature of the Court’s of the standard requiring knowing voluntary guilty pleas to Simon’s case. application The Court’s voluntary indolent of the standard for knowing pleas in capital begets legacy this case that will be by inherited other criminal defendants.
I, therefore, dissent.
STEIN, J., dissenting. stated, capital appeal this is posed issue
Simply a critical second-degree conviction Penn- murder a defendant’s whether *71 finding of malice jury charge permitted a sylvania, following a required for equivalent to that of a mental state on the basis Jersey’s of Criminal manslaughter under New Code aggravated aggravating Justice, serve as an qualify prior as a murder and can Remarkably, the Penalty Jersey’s New Death Act. factor under any prior Legislature “intended to make that the Court concludes any any place an by at time and at committed a defendant murder A at 22-23. That at .2d aggravating factor.” Ante permit the defini- because it would conclusion cannot be sustained states, Jersey’s than New adopted by other rather tion of murder murder, eligible whether a defendant is to determine definition of penalty. for the death consider, 2C:ll-3c(4)(a) jury as an the allowed
N.J.S.A. death-worthiness, its weighing factor on defendant’s aggravating convicted, time, any been finding ha[d] defendant “[t]he challenges the admis appeal In defendant murder.” this another aggravating factor in a foreign as an sibility of a murder conviction addition, contends that In defendant capital penalty proceeding. prior of a murder conviction to the admission prerequisite as a foreign state, that the prosecution must establish from another prior of murder at the time defendant’s jurisdiction’s definition of murder as substantially the offense comported with conviction by N.J.S.A. 2C:11-3. defined majority’s holding that N.J.S.A. agree I
Although with 2C:11-3c(4)(a) statutory aggra admissibility as a contemplates the any place” “at as well conviction entered vating factor of a murder time,” majority’s view that I any cannot endorse as “at defined, murder, is admissi no matter how foreign conviction majority’s holding, a penalty phase. Under capital ble may depend on whether that defen death-worthiness defendant’s State, foreign in a in this or was committed prior dant’s homicide including conduct “murder” as jurisdiction that chooses to define support that would no more than a conviction for the lesser aggravated manslaughter Jersey. offense of in New To allow a jury impose foreign a death sentence based on a conviction for murder, jurisdiction, foreign “murder” when that as defined qualify statutory aggravating would not as a factor in this State inject death-penalty jurisprudence would an arbitrariness into our unwilling that this Court has heretofore been to tolerate. majority’s holding wrongly I expands Because believe that the category death-eligible defendants and undermines the Legislature’s explicitly strictly stated intention to limit death eligibility to the circumstances enumerated under N.J.S.A. 2C:11- 3,1 dissent.
I death-worthiness, In deciding a defendant’s N.J.S.A. 2C:11- 3c(4)(a) jury aggravating allows a to consider as an factor a *72 conviction, time, prior any defendant’s “at of another murder.” statute, jury Pursuant to in the the this case found that defen- Pennsylvania second-degree dant’s 1984 conviction for murder aggravating constituted an factor. the Whether offense for which qualify defendant was convicted in prior 1984would as a “murder” if requires committed in this State an examination of the New Jersey Pennsylvania, statutes as well as the law of as that law was charged jury to in the defendant’s 1984trial. provides
N.J.S.A. 2C:ll-3a that criminal homicide constitutes purposely knowingly “murder” when the actor or causes death or bodily injury death, resulting serious in or when the homicide is committed engaged when the actor is in the commission of certain felony enumerated prior offenses. Because defendant’s homicide felony, my did not involve the commission of a question view the “purposely this ease is whether he was convicted of knowing- or ly caus[ing] bodily injury death or serious resulting in death.” trial, Pennsylvania
In defendant’s 1984 the court instructed the jury Homicide; that charged “Robert Simon is with Criminal that taking is—with the of the life of Beth Smith without lawful jury justification charged or excuse.” The court the the time, Pennsylvania, recognized at that three Commonwealth of degree, in the types of homicide: murder the first murder category degree, voluntary manslaughter. Each of second jury had caused the required homicide the to find defendant death; distinguishable on the victim’s therefore the crimes were First-degree required of mental state. murder basis defendant’s A jury specific to find that had a intent to kill. the defendant murder, second-degree or the court conviction for either first- jury killing charged jury, required the to find that the Malice, explained, the court committed with malice. referring or is a short-hand of of the various bad mental states attitudes any way killing to
which a who kills must have for the be Murder. person killing Murder if the killer acted with one of is, therefore, A is with malice and following states of mind: an intent to or an intent to inflict serious kill, bodily recklessness, injury, heart, or a wickedness hardness disposition, cruelty, of of indicating disregard regardless an and a mind social duty, consequences, of great unjustified disregard harm, or and an death probability bodily the value human extreme That’s what we mean malice. indifference life. lolling if with lawful the other is without malice the killer acted hand, On justification reducing killing or under circumstance excuse, Voluntary or Manslaughter. added.]
[Emphasis jury the definition of The court instructed the that because homicide, finding that defen- encompasses malice an intentional satisfy kill the victim would also the malice dant intended to element, A resulting first-degree in a conviction for murder. murder, hand, second-degree on the other would conviction for remaining mental states jury if found either of the two result *73 to cause the definition of malice: intent included within broad bodily injury; disposition, “a of hardness of serious or wickedness recklessness, heart, consequences, and a cruelty, disregard of the disregard duty, indicating unjustified an regardless of social mind harm, great bodily and an extreme probability for the of death or to the value of human life.” indifference
II
argued,
problem in this case arises
As defendant has
the
possible
know
of the two
mental
impossible
because it is
which
murder,
within the court’s defi-
second-degree
included
states
malice,
possessed at
time of
jury
found that he
the
nition of
jury’s
If
verdict was based on a
Pennsylvania
homicide.
cause
victim serious
that defendant intended to
conclusion
injury,
Pennsylvania
clearly
conviction
would
bodily
defendant’s
prior
as a
“murder” conviction. See
have been admissible
2C:ll-3a(l)
(2) (defining
pur-
as murder an actor’s
N.J.S.A.
causing
bodily injury resulting in
posely
knowingly
or
serious
death).
however,
If,
jury
guilty
found defendant
of second-
degree
finding
on a
that defendant acted with “a
“murder” based
recklessness,
heart, cruelty,
disposition,
of
hardness of
wickedness
disregard
consequences,
regardless
a mind
of social
of the
indicating
unjustified disregard
probability
for the
duty,
an
harm,
bodily
an extreme indifference to the
great
death or
life,”
parallels
conviction
value of human
then defendant’s
manslaughter
Jersey
aggravated
crime of
under New
law. See
(defining
aggravated manslaughter an
N.J.S.A. 2C:ll-4
as
actor’s
recklessly causing
manifesting
death under circumstances
extreme
life).
prior
aggravated
A
conviction for
indifference to human
manslaughter
qualify
prior
as a
murder conviction under
does
2C:11-3c(4)(a).
334, 387-88,
Bey,
See State v.
137 N.J.
N.J.S.A.
(1994) (noting
guilty plea
manslaughter
Contrary majority’s implication, Pennsylvania to the second- degree disposition, murder conviction under the “wickedness of unquestionably formulation of malice is the hardness heart” equivalent aggravated manslaughter as defined the New State, Jersey “[c]riminal statutes. In this homicide constitutes aggravated manslaughter recklessly when the actor causes death manifesting circumstances extreme indifference to human under
507
Aggravated manslaughter
life.”
2C:11-4a.
is identical
N.J.S.A.
manslaughter except
of
for
to the lesser-included offense
reckless
death;
degree
aggravated
in
of
an
the difference
risk of
opposed
if
manslaughter
probability
results
the risk is a
as
239, 246,
Pridgen,
N.J.Super.
possibility. State v.
245
584 A.2d
denied,
(1991).
327,
(App.Div.),
126 N.J.
That our at other times our including termed history, also defined murder as the offense now not, majority suggests, manslaughter under the Code does as the according that term a broader construction warrant the Court’s definition of murder for than that contained the Code’s current death-eligibility purposes of both and death-worthiness. 462-63,
Nor,
at 25-
majority suggests,
as the
ante at
737 A.2d
Ramseur,
123,
v.
106 N.J.
524 A.2d
does our decision
State
(3d
(1987),
nom.,
Beyer,
F.2d 1215
sub
Ramseur v.
983
188
aff'd
denied,
Cir.1992),
113 S.Ct.
L.Ed.2d
cert.
U.S.
“murder,”
(1993),
holding
however
support the Court’s
jurisdiction,
may
by foreign
is an admissi-
that term
be defined
*75
was not at issue
aggravating factor. The definition of murder
ble
Jersey
to
Ramseur
in Ramseur because
the New
indictment which
willfully, feloniously and of his
pled guilty alleged that he “did
“did not
aforethought kill and murder” his victim and
malice
separate-
manslaughter,
charged
would have been
mention
which
274,
In
not look
we observed
courts
will
behind the fact of the conviction because the conviction itself is the
(footnote
276,
statutory aggravating factor.” Id. at
In an
v.
the court
State
denied,
298,
N.J.Super.
(App.Div.),
On Hines’s contended larceny in trial also conviction considered the habitual-offender in equivalent high was not the of a misdemeanor this State. Id. at 304, Pennsylvania larceny 161. The statute read that 263 A.2d “[wjhoever shall, larceny, felony, guilty upon commits is of a sentenced____” thereof, conviction be Ibid. The relevant New Jersey any money, goods, “provided person statute who steals personal property guilty of of a chattels or other another is misdemeanor, price property if the or value of such was under $50
510
and,
guilty
high
if
misdemeanor.” Ibid. Hines
over
is
of
$50
statute,
that,
looking merely
Pennsylvania
at the
“the
claimed
possibly
no more than a mere misdemean-
offense could
have been
or,
not
considered under
habitual-offender
[the
and so could
be
304-05,
rejected
511
beyond
finding
[prior felony] aggravating circumstance
judge’s
Maxwell,
doubt”);
23, 626
v.
534 Pa.
a reasonable
Commonwealth
499,
recognize,
judicata grounds,
(refusing
501
on res
A.2d
prior felony
improperly
claim that
conviction
defendant’s
pos-
York
for
penalty phase
in
because New
conviction
admitted
in Penn-
weapon
loaded
would have been misdemeanor
session of
sylvania,
observing that New York offense was more serious
but
statute,
Pennsylvania’s
equivalent
was not
which
offense and
denied,
weapons),
proscribed
loaded and unloaded
cert.
both
(1993);
Norris,
995,
558,
L.
v.
114 S.Ct.
126 Ed.2d
State
U.S.
(1985)
339,
86,
(vacating
344-45
defendant’s
285 S.C.
328 S.E.2d
prior
penalty based on erroneous admission of
second-
death
Virginia
that did not
degree murder conviction under
statute
qualify
of malice and therefore did not
as
require mental state
law), overruled on other
aggravating factor under South Carolina
(1991).1
Torrence,
45,
v.
N.C.
Ill scrutiny simply inexacting The level of is insufficient Court’s supports prior-murder- issue is the evidence when the whether Where, here, aggravating factor. as the record leaves conviction reviewing ground court uncertain about the actual on which the rested, jury’s ground and one would not be admissible decision factor, appropriate remedy is the reversal of aggravating as an resentencing. See defendant’s death sentence and a remand for 862, 881, 2733, 2745, 77 Stephens, 462 103 S.Ct. Zant v. U.S. (1983) 235, (noting general rule that “a verdict must L.Ed.2d 252 rely any of jury if instructed that it could on be set aside grounds is independent grounds, and one of those two or more insufficient, exclusively may on the verdict have rested because California, ground”) (citing Stromberg v. 283 U.S. the insufficient (1931)). 532, 535-36, 1117, 359, 369-70, 75 L.Ed. 1123 51 S.Ct. Gerald, doctrine, in v. 113 with that this Court State Consistent (1988), 40, rely death-eligibility 792 refused to N.J. 549 A.2d explicitly any jury that failed to state whether purposes on verdict jury’s finding that the defendant reflected the the conviction Mil, bodily injury on the victim. or to inflict serious intended to 92, A.2d 792. Id. at 549 death-eligibility prior to include offend- expand we
Nor should jury’s presented for the would have been ers whose crimes never State, simply the for- if in this because consideration committed broadly more than jurisdiction the offense of murder eign defines in Jersey. As we noted Ramseur: does New aggravating establishing an factor the State adequately conviction as
By prior eligible for the death fulfills to “narrow the class persons its constitutional duty justify on of a more severe sentence [to] ... reasonably imposition penalty guilty of murder.” to others found the defendant compared 514
887, 103
[Ramseur,
S.Ct.
supra,
at
N.J. at
77 L.Ed.2d
276,
at
A.2d
[524]
249-50) (alteration
(quoting
in
Zant,
original).]
supra,
[462]
U.S.
at
defining
have been accorded considerable latitude
States
factors,
statutory
non-statutory,
may
both
be consid-
deciding
Barclay
v.
ered
a defendant’s death-worthiness. See
Florida,
939, 956,
3418, 3428,
103 S.Ct.
77 L.Ed.2d
U.S.
(1983) (stating
judge’s
trial
consideration of
“[t]he
Barclay’s
aggravating
criminal record as an
circumstance was
law”)
Zant,
added);
(emphasis
improper as a matter of state
878-79,
supra,
For Justice PORITZ and Justices affirmance —Chief POLLOCK, GARIBALDI COLEMAN —4. HANDLER,
For reversal —Justices O’HERN and STEIN —3.