*1 737 A.2d PLAINTIFF-RESPONDENT, JERSEY, v. JESSE STATE OF NEW TIMMENDEQUAS, DEFENDANT-APPELLANT. August Argued 1999. December 1998 Decided *16 Jay Wilensky, R. Deputy- William Smith L. Assistant Defenders, (Ivelisse Torres, argued appellant Public the cause for Defender, attorney). Public Foddai, General, Deputy Attorney A. argued
Catherine (Peter Vemiero, respondent cause for Attorney of General New Jersey, attorney). opinion by of the Court was delivered
GARIBALDI, J. May a convicted defendant Jesse Timmendequas capital Kanka, Megan murder of committed the course of kidnapping Following and sexual assault. penalty-phase pro- conviction, ceeding on the capital-murder the court sentenced directly appeals death. He right. this Court as of 1(a)(3). See R. affirm We for conviction murder 2:2— and his sentence of death.
I. History Procedural 19, 1994, On October Jesse Timmendequas charged was with: or knowing purposeful Megan murder of Kanka his own conduct, 2C:ll-3a(l) (count (2) in violation one); of N.J.S.A. or murder, 2C:ll-3a(3) felony (counts violation N.J.S.A. two and four); degree first kidnapping, in violation of N.J.S.A. 2C:13-lb (count three); degree assault, aggravated and first in violation of 2C:14-2a(l) (counts five, six, N.J.S.A. eight). seven and 18, 1994, On November County Mercer Prosecutor’s Office Aggravating filed a Notice of Factors. The aggravating factors (1) detection, were: escape murder appre- committed hension, trial, punishment or aggravated confinement for the victim, sexual assault kidnapping N.J.S.A. 2C:11- and/or (2) 3c(4)(f); and the murder was committed the course of the of an aggravated commission sexual kidnapping assault and/or victim, 2C:ll-3c(4)(g). N.J.S.A. *17 29, 1995, trial change moved to the venue On June defendant 20,1995, granted the court County. trial from Mercer On October 15, motion, County. setting in Camden On December the venue reconsideration, 1995, court asking the moved for the either State county to a empanel foreign jury change a or venue to 1995, 21, granted court contiguous December to Mercer. On motion, jury empaneled holding foreign that a would be the State’s parties to County. then invited the from Camden The court jury a foreign from option empaneling on the submit briefs 29, 1996, January chose Hunter- contiguous county. On court jury. County foreign the source of the don as evidentiary issues. hearings were held on various Pre-trial also system to permit to a struck and employ motion Defendant’s granted. court ruled attorney in voir dire was The participation The police to were admissible. that all of defendant’s statements to suppress motions: evidence court also dismissed defendant’s by a search authorized during a consent search and obtained warrant; prosecutorial miscon- indictment due to dismiss the jury; and grand jury; fourteen-person duct before the select all offenses. to consolidate murder motion from the to exclude The court further denied Law,” “Megan’s holding jury pool jurors knowledge of all with jurors prior prospective of defendant’s would advise court aggravated included convictions for record. That record attempt- young girl in sexual assault of a sexual assault in 1980. theft of a vehicle aggravated ed assault Appellate Division. sought interlocutory relief from Defendant intervene, trial but directed the Appellate Division declined jurors prior It also of defendant’s convictions. not to advise court questions it writing intended prepare ordered the court subsequent application for potential members. A to ask questions prepared on the trial court’s interlocutory relief based with Defendant’s motion Appellate Division. was denied this also was denied. appeal for leave to Court County on began in Hunterdon
Jury for the trial selection 15, 1997, for moved recon- January April 1997. On *18 536 change requested jury
sideration of the of venue decision and that County. selection be moved to motion Camden That was denied. 21, 1997, April following A was selected on individual inter- prospective jurors. of 331 subsequently views Defendant renewed change motion; of it again, his venue was denied. guilt phase May May
The was held from to 1997. Defen- dant was on all penalty phase convicted counts. The was held alleged from June 9 to mitigating June 1997. Defendant as factors: that was he under the influence of extreme emotional disturbance, 2C:ll-3c(5)(a); N.J.S.A. pursuant to capacity that his appreciate wrongfulness to the of his or conduct to conform his requirements conduct the significantly impaired of law was a defect, as result of mental or to N.J.S.A. disease pursuant 2C:ll-3c(5)(d); twenty-two and upbringing circumstances of his 2C:11-3c(5)(h). factor, mitigating under “catch-all” N.J.S.A. The aggravating concluded that outweighed factors mitigating “By verdict,” factors. virtue of the the court sentenced 30, 1997, July defendant to death. On defendant was sentenced non-capital on the counts felony of the The indictment. murder convictions, four, (count counts two and were merged into murder one). imprisonment Defendant was sentenced to life on count, in the event his death sentence was vacated. Counts through convictions, eight, aggravated five sexual assault were merged (count three). kidnapping with the conviction Defendant imprisonment sentenced to life on kidnapping charge, with years parole ineligibility, to run consecutive to count one. required pay Defendant was also Compensa- Violent Crimes penalty tion Board Appeal. Defendant $100. filed Notice of
II. The Trial A. Guilt Phase victim, Megan Kanka, lived at 32 Barbara Lee Drive in Township
Hamilton with parents, her Maureen Richard Kan- ka, diagonally lived across the siblings. two Defendant her Jenin, Joseph Brian at Drive with Cifelli street 27 Barbara Lee and Cifelli’smother. for
Megan’s the first witness the State. She mother was 29, 1994, July night Megan’s on testified about events Mrs. that she laid down relax disappearance. Kanka testified Megan resting, went approximately p.m. 6:30 While she was up, got she a friend. Mrs. Kanka down the street visit When they if Megan. neighbors asked had find The Kankas could not defendant, including neighbors, A Megan. seen number *19 neighborhood they Megan the Kanka that had seen told Mrs. he had also the Kankas seen day. Defendant told earlier that Courtney stopped her friend Megan dinner when she and before boat, on front was the street to talk to him about his new which his of house. Megan’s disappearance, Mrs. Kanka called
Shortly after Drive, gave a Lee she them they arrived at Barbara police. When clothing description daughter and a of photograph of her of gave police pair shorts wearing. also Megan was She disappeared. wearing when she resembling Megan was those that that he Paul Seitz testified Township Patrol Officer Hamilton Kanka’s residence at 8:49 Smith arrived at the and Officer Mike ques- and property, Kanka’s house and searching the p.m. After spoke with defen- tioning neighbors, Seitz of Kankas’ some Megan riding had seen the officer that he Defendant told dant. day. if he had seen bicycle p.m. that When asked at 2:30 her (because with his statement conflicted any other time Megan at earlier), he said said and what had neighbors had what other bicycle in Megan riding her had seen stated that he Defendant p.m. 5:30 and 6:00 p.m. house front her between Jenin, roommates, out and were Cifelli also told Seitz his and not have seen p.m. p.m. and 7:00 would shopping between 5:30 Megan. p.m., he approximately that at Nelson then testified
Officer Lee Lane to approached 27 Barbara other officers and three Cifelli, owner, obtain to search agreed consent the house. Mr. house, yard Megan. to let them They search and boat for did search, During not find her. the course of the Officer Nelson heavy being brown washing noticed blankets washed in the ma- unusual, Although chine. he found it be none residents at 27 Lee a suspect Barbara Lane was time of this first search. a.m., approximately
At O’Dwyer 12:30 Detectives and Kieffer Sergeant Stanley and signed Detective obtained a consent from' again. Jenin, owner Cifelli search the home Cifelli and defen- questioned individually dant also were at that time. search,
During O’Dwyer found appeared “what to be four pairs underwear,” having teddy-bear women’s one pattern, under the bed Cifelli’s room. The read officer Cifelli his Miranda rights rights. and Cifelli explained waived his Cifelli that the belonged ex-girlfriend. O’Dwyer underwear to an soon realized that the underwear was adult-sized did not it believe Megan’s disappearance. gave connected Cifelli officers an alibi receipts proving he and Jenin not at were home at the time Megan’s disappearance.
The officers then They interviewed Brian Jenin. did not admin- Miranda rights since, ister according O’Dwyer, the search of *20 Jenin’s nothing suspicious room disclosed police just and the were trying to obtain information. Jenin’s account was consistent with Cifelli’s. questioning Jenin,
After Cifelli and the officers then called They defendant into room. did not read defendant his Mi- randa rights nothing suspicious because had been found his room police just and seeking were information. Defendant gone day related that he had out that with Jenin and Cifelli to boat, purchase a and washed it in then front of his home. He spoke Megan, child,” to who a “neighborhood he knew as and her Courtney friend day between 5:00-5:30 that while he was washing the boat. Jenin and Cifelli out running were errands at the time. shaking perspiring O’Dwyer that defendant was and testified Kieffer sat throughout of the interview. When heavily the course defendant, legs and crossed his arms and down defendant next nervousness, account, his away. on defendant’s turned Based Megan’s disappear- at the that he was alone time his'assertion ance, re-interviewed at thought defendant should be the officers officers, agreed but accompany headquarters. Defendant in their followed behind drive himself. The officers wanted to speak or Jenin felt no need to with Cifelli vehicle. The officers again. a.m., at 2:50 they approximately at the station
When arrived signed He a form Defendant was read Miranda warnings. his his He asked rights. waived never stating that he understood and not want to talk. He said he lawyer for or that he did a said any way could. help would he documenting his gave police written statement Defendant previous 29th. statement conflicted with on the whereabouts particular, given had to the officers. defendant accounts on the had the victim a second time wrote that he seen defendant seen 29th, told Kieffer that he had p.m. previously He had at 6:30 once, in the his boat. only her earlier afternoon a.m., signed consenting a form At 4:00 defendant approximately looking for O’Dwyer, while vehicle. Detective search his piece toy and a of black fingerprints, found a brown chest latent Defendant, pickup truck. who was felt back of defendant’s in the search, recently had he cut present during volunteered that glass hung in front of the his on curtain rod that hand truck. Defen- passenger cap portions of the separating the hand, O’Dwyer found no palm of his but injury dant an on the had a.m., search, At after the on the curtain rod. 4:00 blood or skin day for to return next headquarters, promising left questioning. more called into Ingebrandt testified that he was Martin
Detective help with the Kanka 5:30 a.m. to headquarters approximately a.m., sent Ingebrandt was approximately 7:00 investigation. At *21 yard. search defendant’s house to obtain consent to the boat the signed began Cifelli the consent and the officers to search the boat prints. for Ingebrandt they
Detective testified that when walked over to boat, garbage there was no on the curb at 27 Barbara Lee search, During Ingebrandt Drive. the course of the noticed someone, defendant, walking whom he later learned a puppy later, down Barbara A Ingebrandt Lee Lane. few minutes noticed garbage three cans between the boat curb and side of the had been not there before. The officers obtained consent Cifelli’s a.m., garbage. At search about 9:15 the officers returned to headquarters garbage. Nothing with the was confiscated from the boat.
Upon searching garbage, rope officers found a with some knots tied in it appeared substance that to be dried it, pants blood on of a pair appearing waistband small tó be child, for piece and a of material that matched the waistband. Unsuspicious items found were as well. a.m., approximately
At Ingebrandt 10:00 brought and Butera clothing the articles of for the Kankas identification. Mrs. Kanka clothing Megan’s. confirmed that articles of were then police headquarters Kankas went to to make a statement. 30th, pm. At 12:17 on McDonough Pukenas and interviewed They defendant. read defendant his Miranda rights. Defendant signed stipulating a form that he rights understood his and waived questioning defendant, After them. Pukenas asked him write a 29th, detailing statement his activities on the which defendant did McDonough while Pukenas and outside. waited Pukenas noticed differences between defendant’s first and second written state- ments. Pukenas also noted kept focusing that defendant on the frame, p.m. 6:00 6:30 mentioning times, time it three or four though even the detectives had highlight not asked him to period. After detectives reviewed defendant’s statement with him, questioning continued. At that point, Pukenas showed defen- dant either the clothes or the photographs of the clothes. Defen- *22 job deny his to rags them as from and continued dant identified Megan’s disappearance. in any involvement approxi- until McDonough questioned and defendant Pukenas minute twenty twenty-five to mately p.m., allowing him two 6:35 throughout. breaks, in room though he remained the conference questioning, approximately at period the end of this Towards speak to that defendant asked p.m., Pukenas’ notes indicate 6:20 roommate, brought interview was into the to his Jenin. Jenin room, spoke saying to defen- accompanied Jenin first Kieffer. you. to dant, you, you, they got going You’re “They got they got outside, response, I’ll friend on the be friend.” need a said, “She’s up his and then looked and put head down defendant detectives County proceeded in Park.” He then to tell the Mercer head. put bag had a over her Megan was dead and that he she denied police show the where was. Pukenas agreed to He or what body to where the was was told ask defendant that Jenin say. to inside, park. defendant drove defendant to the Once
Police lying body. victim was directly to the brought the detectives view, plastic bag her with a over in concealed from tall weeds defendant, headquarters, at the ride to the car back head. On happened. request, what officers’ recounted request at back made a written statement Pukenas’s Defendant 7:30 In this state- headquarters. approximately p.m. at It was relayed following: ment, jury, to the was read the defendant which 29th, puppy came wanting victim to see defendant’s on out; defen- his roommates were to defendant’s house while over her; and to touch brought Megan the bedroom started dant into away; would get afraid that she screamed and tried to the victim shorts; victim, mother, her ripping grabbed defendant tell her neck, put it the victim’s grabbed a and around defendant then belt bleed; stop room; fell and started to her she pulling back carpet, getting from on the bleeding prevent the blood head; a second plastic her he used placed bag over defendant first; Jenin point, this Cifelli and bag tie off plastic home; dead, thinking arrived the victim put her in box, toy box, large which he had converted to a tool and carried downstairs; van, put her as defendant thought the box he cough. he heard the victim going dump
Defendant wrote that he was body near the lines, power Instead, police but saw a car there. he took the County victim to Mercer Park. pulling As defendant was her out box, placed fingers vagina, he his “played her with her a dumped little” and then her in the park weeds. He left the *23 WaWa, went to bought cigarettes where he paper. and a He then home, Upon arriving returned home. ripped up defendant the victim’s shorts that were in his bedroom and went outside. Mrs. Kanka asked if he had seen the victim. Defendant said by that he neighbor’s had seen her the driveway. Defendant then helped by handing look for the victim out fliers. writing statement,
After out his defendant’s clothes were re a.m., moved fingerprinted. and he was At 4:00 taking while defendant, consensual clipping nail from Officer Wilkins noticed appeared what to be a bite mark on defendant’s hand. He took photographs of the mark and it measured with defendant’s con Askin, sent. Dr. Haskell a odontologist, performed forensic a analysis bite-mark of defendant’s hand. He determined that the defendant, victim had leaving bitten the mark. Ahmad,
Dr. Raafat County Examiner, the Mercer Medical performed autopsy an on body. the victim’s Dr. Ahmad testified found, among that he things, petechial other hemorrhages in both eyes, sign a by strangulation. telltale of death ligature He found a mark on the neck that was consistent with the leather belt found in defendant’s room. The victim bruising had and contusions chin, object under her consistent with an placed or hand on the neck. The victim received a blunt eye, trauma to the caused by by either a fist or striking against the object. head an There back, bruising was also on the arms legs, indicating and the victim grabbed had been and held on her back with top someone on her. Some of the abrasions could have by been caused rubbing against carpet. right kidney,
Internally, the victim on her colon and had bruises by separate weight on probably caused blows someone’s and/or hymenal margin pen- her. There was a tear top of finger penis. Additionally, or vagina by a etration of caused anus, covering indicating were two tears the mucosa there by penis. hemorrhaging was caused penetration Severe object. separate blows to head with blunt three the cause death was mechanical Dr. Ahmad concluded that belt, oxygen to the constricting strangulation with leather brain, causing within three to four minutes. brain death hastened, plastic not the cause of death. bags but were Miranda reviewing Stanley Upon autopsy, Detective reread Stanley rights. waived Again, defendant his rights to defendant. autopsy reports, defen- he knew told defendant based on Stanley about telling everything. them said he knew dant was not then to the Defendant the sexual assault blunt trauma head. sexually assaulting Megan. admitted administered Miranda Stanley rights again and ob- Officer . formal Stanley waiver. then took defendant’s tained another statement, at trial. The substance read to the which *24 statement, statement, as it first formal is as differed from his room, struggle Megan when tried to leave defendant’s follows: floor, ensued; hit on the door fell to the victim her head as she the dresser; slapped her face on defendant then frame and her the bleed; face, causing pulled pants mouth he her down her he tried, unsuccessfully, vaginally penis; his penetrate her with trying finger instead. Defendant denied penetrated her with his trying “may have anally, slipped” victim but while penetrate time, During this victim was vaginally. her penetrate put he breathing was still after breathing. but She unconscious signing this last Stanley head. added that after bags over her defendant, tone, statement, he felt and unemotional” said in a “flat while,” feelings meaning “getting those “slipping for a he had been couple or a of months.” girls couple ... for of weeks for little analysis Forensic following:' evidence found the the tool box in truck contained an Allen wrench set similar to Megan’s body; investigator the wrenches found near an from the Analysis FBI performed DQ Alpha DNA Unit who polymarker testing rug cuttings on from defendant’s room concluded that Megan’s markers were consistent with rug samples; two of the blood stains found on defendant’s belt were consistent with Me- markers; gan’s DNA population over 99% of the Caucasian could possibility be excluded from matching Megan’s DNA mark- ers; there was perform insufficient seminal fluid to a DNA test on the anal swabs.
A forensic analyzed chemist and a forensic scientist the trace They evidence. concluded that the garbage shorts found chemically contained physically fibers consistent with fibers rug, found on defendant’s sleeping bag, bedroom and in the trap lint dryer. of defendant’s pants Fibers found on the sweat matched those Megan’s taken from thirty blouse. Over hairs bed, dishcloth, found near defendant’s on a on carpet, and in the black felt cloth had physical the same and microscopic quali- Megan’s. ties as There Megan’s were four head hairs on blouse that were consistent with defendant’s hair and inconsistent with Cifelli’s A pubic and Jenin’s. hair Megan’s compared on blouse favorably to defendant’s. The examining forensic chemist fluid sheets, belt, evidence found blood on defendant’s bed the black door, swabs taken from defendant’s bedroom oral and anal swabs victim, taken from the earring. and on her blouse and testify Defendant present did not or guilt witnesses in the phase. presented His defense through cross-examination and by argument. found guilty defendant on all counts. Penalty
B. Phase
1. Case Defendant’s penalty phase, presented two witnesses who mitigating testified to Krych, factors: Carol a forensic social *25 psychologist. worker; Podboy, clinical and forensic a and Dr. John right his of allocution. also exercised Defendant witness, degree coun- Krych, holds a master’s first Ms. drug alcohol counsel- and certification seling, an international worker for nineteen as a forensic social ling, has worked and investiga- years of testimony on over two years. Her was based age history, from birth to social tion into defendant’s clearly dysfunc- a Krych, had According to seventeen. promiscuous a alcoholic family His mother Doris was tional life. of her by seven men. Several a total of ten children who had Doris was adoption or foster care. placed for children had been fathers born or who their all of her children were not certain when Family and Chil- Doris the United An evaluation of were. “quite limited her as Society prepared 1955 described dren’s “amoral,” from a and emotionally,” “promiscuous,” mentally and “deprived background.” Neill, an excessive living with one William while Doris, began she record and “abused” who had a criminal
drinker Skip and Skip. Jesse was born relationship a man named a with Jesse, 15,1961. pregnant with Although Doris was April Doris on “basically country, he was Skip as accompanied around she pregnancy, throughout law.” She drank running from the Paul, pregnant with “cut down.” Doris became although she did brother, shortly after Jesse’s birth. Jesse’s parents on Skip lived with her Krych that she and Doris told they lived in a series Jersey. Thereafter return to New their clothing from They homes, “shack.” obtained one of which was a off, chil- sales,” and the electricity frequently “rummage painter, cold, Although Skip was dirty hungry. dren were full- not work “basically ... a con man” who did Doris said he was was a drinker with that he also established time. The evidence tendency toward violence. record and a criminal heavily on school records. testimony report drew Krych’s exist, Krych “conflicting materials” acknowledging that Although prob- diagnosed with emotional been that defendant had testified *26 “educably study lems and was classified as retarded” a child social, multiple problems. team. He had emotional and academic given follow-up counseling psychological He was never or evalua- system. Krych tion in the school further asserted that Jesse child, adequate lacked medical care as a based on the fact that memory family physician Doris had no of a and included no gave Krych. medical records the documents she Krych conducted extensive interviews with Paul as well. Two of taped those interviews were with Paul’s consent and shown to the jury. acknowledged history Paul that he had a of “severe” alcohol addiction, drug “having and which he attributed to such terrible Krych memories.” testified that Paul and “other sources” told her Skip sexually had molested Jesse and Paul several times each many years. week for Paul Skip pet stated that had drowned a dog boys, rabbit, to scare the pet forced them to eat a cut and head off a cat. Paul eight also related that when Jesse was or years age, nine of Skip rape 7-year-old girl the two saw in his Skip anyone. truck. threatened them and ordered them not to tell Krych acknowledged that saying Paul was “now” that Jesse put “should apparent be to death.” She noted that change this heart Skip occurred after Paul discovered that was alive. Paul Skip’s, Krych contacted, had told a friend whom had that “the person that had done this to him get could come after and him.” Podboy,
Dr. relying Krych’s report on to form the basis his (he testimony defendant), never evaluated testified that defendant pedophilia, suffers from along math, with reading, disorders of expression. Podboy written “probable generalized found anxiety, perhaps including post-traumatic stress disorder” and “schizoid personality disorder in expert defendant.” The also noted border- line retardation and fetal sup- alcohol effect. He concluded port from family inadequate was and that his overall functioning Podboy level was if testified that a child’s 50/100. neglects mother drinks and ages her child between the of birth 5-7, experience trust, the child will difficulties with sex roles abused, sexually years old is If child 5-7 and self-control. substantially impaired. development can be child’s moral crime, defendant time of the Podboy that at the Dr. testified “unraveling and was disturbance” “extreme emotional was under wrong- appreciate the “capacity to Defendant’s psychologically.” as was his “very impaired,” much fulness of his conduct” requirements of the ... to the his conduct ability to “conform underage females. strong urges to be with had law.” Defendant *27 satisfy those from his desire conduct resulted His reckless urges. an although defendant demonstrated
Podboy concluded behavior, his level of knowing purposeful engage in and ability to compul- powerful Defendant’s “pretty primitive.” functioning was IQ also genetic Low and defects being abused. resulted from sion results of a on to state that the The doctor went may play a role. brain, regions evaluation, flow in measuring blood “SPECT” brain problem with defendant’s possible a serious showed insult,” abnormality,” a “congenital or a “vascular could reflect insult.” “post-traumatic towards sexual intent Podboy that defendant’s
Finally, testified by was caused Her death separate from her death. the victim was when the victim panic defendant felt response to the a reflexive to flee. attempted
2. The State’s Case phase to guilt in the presented relied on evidence The State mitigating factors. To rebut defendant’s support aggravating evidence, witnesses cross-examined defendant’s the State Sadoff, a of its own—Dr. witnesses presented four rebuttal Mr. officers. and three law enforcement psychologist, forensic jury. to the impact statement read a victim Kanka also outside cross-examination, acknowledged that no one Kryeh On physical sexual and the stories of family had corroborated ever Krych conceded that also by family members. to her abuse told there supporting was no evidence the record the contention that fires, animals, defendant set was cruel inappropriately behaved exposed or girls. acknowledged himself to She further that she incorporated progress reports had not academic findings, her including report a 1969 school that concluded that defendant was making exceptional progress, showing and that there were records doctor, dentist, family a family had and had received all his vaccinations.
Dr. Sadoff testified that support mitigating there was no for the factors of extreme emotional disturbance or mental disease or defect. Defendant’s statements during about his conduct murder revealed logical that he acted prevent manner to detection and was in control of the situation. The doctor added borderline, IQ that defendant’s but not so low as to render him unable to appreciate function or the nature of his conduct. Raymond
Detectives County Cowen of the Mercer Prosecu- Krych’s tor’s Office stated that claims that defendant’s mother was disputed by drunk all the people family time were who knew the during defendant’s Similarly, childhood. witnesses interviewed disputed the detective claims that defendant’s house and clothes were disheveled.
Raymond also eight meetings testified about the he had with Timmendequas. Raymond Paul reported during their first meeting, Paul thought said that he defendant should die and “pull wanted to Raymond the switch.” He every- also told thing he said to the defense had been “twisted around.” In one meeting, Raymond Paul told that he and defendant had been physically by Skip abused and that Doris had broken defendant’s arm when defendant was seventeen. Paul later denied physi- cal abuse and said that he had been drunk when he made the tapes Krych. video with jury unanimously proven found that the State had both
aggravating beyond factors a respect reasonable doubt. With to factors, mitigating jurors four found that defendant was under disturbance, the influence of jurors extreme emotional two found defect, varying or and disease suffered from mental that he mitigating twenty-one catch-all jurors ten of the found numbers (1) plan in did not follows: defendant They were as factors. (2) (twelve jurors); injure seriously kill the victim to or advance (3) (six subjected years of sexual and jurors); was felt remorse father, fondling, including not limited to by his but physical abuse sex, beatings by his father’s hand and penetration, anal forced oral (4) (three exposed to domestic violence jurors); was strap or a (twelve jurors); paramours of her mother and several between his incarceration, (5) history drank had a to a father who was bom family and needs of totally disregarded the his excessively and by any are: defendant of the members catch-all factors not found Those authorities, (1) willingness cooperate demonstrat- with law enforcement a had responsibility acceptance personal for his ing recognition affirmative and death; (3) conduct; (2) purposefully was cause the victim’s did not criminal victim; (4) panic causing had a childhood and by death of the influenced violence, activity, by exposure criminal to domestic adolescence characterized home, abuse, neglect physical instability and and emotional substance abuse; normalcy; parents any who did not physical had had a life void of severe terribly; in a treated him lived normal behavior and as role models of serve assistance, public primarily extremely poor existed on family and that was home; (5) during witnessed his especially Hall was in the the time that Charles (6) mother, sexually physically; brutally and brother and both abuse his father neighborhood girl was brutally rape when defendant father witnessed his it; (7) old, eight years not to tell about approximately and was threatened him; pets to silence his in an effort torture and kill several of witnessed his father if told by or his mother he ever father would kill him his father that his was told abuse; (8) subjected physical abuse at the hands anyone was the sexual about inability temper instability resulted in her to control her and of his mother whose occasion; (9) actively breaking regularly, one beating his arm on him father; (10) siblings to his rejected by of his resemblance his mother and because inability giver due to his mother’s role of care to assume the was forced children; (11) several head unwillingness properly suffered care for her accidents; (12) physiological basic injuries resulting never had his two car from food, clothing, housing, including by parents, psychological needs met his love, needs; emotionally no no hygiene, medical received educational and guidance; support had his basic or healthy role models and no male or female father; (13) being despite evaluated ignored completely his mother and needs public problems by the mentally with emotional as retarded and classified counseling team, follow-up or such as study no services received school's child *29 psychological evaluation. further (eleven (6) jurors); promiscuous
even their lives was born to a by gave up mother who had ten children seven different men and (twelve relinquish or had to seven of these children to the State (7) jurors); atmosphere provide was raised an that did not him stability, having twenty-one with moved times the time he was (twelve (8) jurors); years seventeen old was born to a mother who emotionally physical was unfit and unable meet his and emo- him tional needs and caused to suffer from fetal alcohol effect due (four (9) drinking throughout pregnancy jurors); to her her stepfather, only suffered traumatic loss when his figure father (seven him, jurors). who did not abuse died factor, 25(a), mitigating The also found its own catch-all on they unanimously agreed: which Timmendequas’ “Jesse childhood by exposure and adolescence were characterized to domestic vio- lence, abuse, home, activity, criminal instability substance physical neglect possible physical emotional and and and sexual parents abuse. His did not serve as role models of normal Also, poorly. family behavior him poor and treated public received assistance.” beyond found a reasonable aggravating doubt that the
factors, individually collectively, both outweighed mitigat- factors, ing thereby fixing defendant’s sentence as death. This appeal followed.
III. Pretrial Issues Change Venue Motion A. change
Defendant moved for a of venue because of the extensive publicity surrounding this ease. In the motion he cited 437 Times, articles2 from the Trentonian and the Trenton separate County’s leading newspapers. Mercer two He claimed those stories, columns, cartoons, "Articles” includes advertisements, letters to the editor, etc.
551 in receiving a fair trial Mercer prevented him from articles County. constant, prolonged and publicity in this case was pretrial
The
Trentonian,
County newspaper, re-
a Mercer
The
horrendous.
trash,”
“scum,”
of
an
“predator,”
“piece
a
a
to defendant as
ferred
“monster,”
“dirtball,”
“sicko,”
“animal,”
and a
a
a
a
“pervert,”
a
guilt
assumed defendant’s
The articles often
“bottom-feeder.”
convictions, including
prior
sex offense
and disclosed
serving
while
psychological
had refused
treatment
the fact that he
that
frequently
Trentonian
stressed
previous
sentence. The
crime,
many
for
and
articles called
had confessed to the
publicity as
The case also received nationwide
his execution.
Megan’s Law.
activity associated with
result of the
right
by a
guaranteed
is
the
to trial
A criminal defendant
Harris,
122, 142, 716
jury.
v.
156 N.J.
impartial
fair and
State
Const,
Const,
¶
(1998).
XIV;
I, 10.
N.J.
art.
amend.
A.2d 458
U.S.
jury’s verdict be
impartiality requires that “the
concept
of
court,
open
in
not from outside
received
based on evidence
140-43,
Harris,
A
venue,
analyzed
publicity
accordance
court
the
trial
Koedatich,
225, 271,
112
548
v.
N.J.
factors laid out
State
five
denied,
L.
(1988),
488 U.S.
S.Ct.
A .2d 939
cert.
I).
first,
(1989) (Koedatich
The court held
Ed.2d 803
Though
comparable
not
“significant.”
coverage was
extent of the
seeking
‘vengeance
crusade’
invective’ and
to the “‘stream of
...,”
court
vs. Harris
trial court
State
found
coverage and its
totality of the
found that “the
nevertheless
Even State
prolonged____”
had “been constant
nature”
media sources.
case in various
had commented on the
officials
Harris,
from
that this case is different
further observed
The court
supra,
parents Megan
in that “the
of
Kanka have worked with
singular purpose
goal
generating passage
legisla-
towards the
offenders,
require
together
registration
tion that would
of sex
with
Second,
community
court
notification.”
noted that the nature
gravity
of the offense cannot be more serious than
a death
Third,
penalty
recognized
trial
case.
court
the size
County community
potential exposure
Mercer
and its
to media
Fourth,
coverage regarding the case were serious concerns.
*31
respective standing
court considered the
of the deceased and the
Megan
figure
Kanka
a
accused.
had become
national
after her
result,
high profile,” especially
death. As a
a
in
defendant “has
County. Finally,
respect
community hostility,
Mercer
with
to
although
yet
court observed that
there had not
been crowds or
courtroom,
major protests in the
“that does not mean that the
community
surrounding municipalities
... and
do not feel and
rage against
harbor a silent
the defendant.”
findings,
properly recognized
Based on its
the trial court
coverage
prejudice
the media
created a realistic likelihood of
Harris,
142-46,
458;
supra,
defendant. See
B. Reconsideration Venue Order of motion, At change the conclusion of the of venue the State requested hearing a on the location chosen the court. It had yet presented demographics not evidence on and wanted the opportunity provide poten- information about other counties as signed tial locations. The changing court the order venue Camden, permitted but the State to submit motion for reconsid- place eration of the of venue. 21,1995,
On November the State filed for reconsideration of the changing requested Order venue to Camden. The State that the empanel foreign jury court changing from Camden in lieu of trial alternative, venue. the State asked the court to move the county family (suggesting trial to a more convenient to the victim’s Counties). Burlington, Middlesex or Hunterdon holding its in argued The that the court should reconsider State rights parents. victim’s light of the constitutional Amendment, Rights argued, required the court Victim’s the State if hardship” to take into account the “extreme that would result County daily the Kankas had to travel to Camden to watch defendant’s trial. The State submitted affidavits from Mr. stressing emotional and financial burdens that Mrs. Kanka placed couple would on the if the trial were moved to Camden. be originally argued point response The State had not motion. granted foreign motion and ordered that a The court the State’s County County. empaneled in Mercer from Camden be “[tjhere Although concluding that is a likelihood of still realistic pretrial publicity County[,]” court prejudice from Mercer recognized importance protecting rights. the victims’ Changing Rights venue violate the Victim’s Amendment of would ¶ Const., I, 22, great hardship impose art. as it would on N.J. neigh- that the parents. the victim’s The court further observed danger- County courthouse sits is borhood which the Camden *32 ous, family thereby taking greater a toll on the victim’s and other public who wished to attend the trial. The members Finally, savings significant. in time and costs also would be security competency court of the staff and at the stressed courthouse, County noting experi- that the administrators’ Mercer handling proceed- trial ensure that the ence the Hams would ings adequately safeguarded. The court did “not see would be rights” resulting from a any diminishment of the defendant’s change reversal of the decision to venue. that the trial court’s decision to recon-
Defendant now asserts (1) change of venue motion was incorrect because: sider the interlocutory in criminal matters are motions of reconsideration (2) allowed; Rights not and the Victim’s Amendment does not change of apply question to the of whether there should be jury. claims empanelment foreign of a Defendant venue or an right to a process due and his constitutional those errors violated fair trial. Interlocutory
1. Motion to Reconsider provides “[u]pon motion made not later
Rule 1:7—4
...,
judgment
days after service of the final order or
than 10
However, Pressler,
rehearing....”3
may grant
court
Current
(1995)
Rules,
3 on Rule
states:
4[1]
Court
comment
N.J.
1:7—
R. 4:49-2
also
to note that the
of both this rule and
10-day
It is
important
provision
judgments.
orders,
Reconsideration
final orders
interlocutory
only
apply
of
judgment
is a matter within the sound discretion
entered,
to the time
is
up
final
of
added).4
justice, (emphasis
to be exercised in the interests
the trial court
of
Fitzsimmons,
relies on dicta
State v.
286 N.J.Su-
Defendant
141, 147,
(App.Div.1995),
o.g.,
per.
2. Amendment Victim’s improperly Defendant also contends that the trial court County impact changing considered the venue to Camden would family, emotionally. financially have on the victim’s both Rights approved by Jersey Amendment was New voters Victim’s provides in 1991. that: That Amendment 4(b) R. amended, The new rule effective 1998. September 1:7— rehearing extends the time to move for a from ten to period twenty days. *33 4 2 This can be found in Comment of the 1999 rules. quotation
555 with fairness, A victim of a crime shall be treated compassion respect by right justice criminal A victim of a crime shall not be denied the to be system. judicial proceedings ... at when the victim is properly present public except law____ in accordance with the A victim of a crime shall be entitled to sequestered rights Legislature. as be those and remedies may provided by ¶ 22.] [N.J. Const., I, art merely urges Defendant the Court to hold that the amendment allows victims to attend a trial and no more. rights Legislature’s
Defendant views the commitment to victim’s decade, narrowly. in past too Over the both nationwide and New legislation passed imple- Jersey, significant amount of has been protection of menting increased levels of for victims crime. State J.G., J.T., Jersey 151 New in the Interest N.S. and N.J. of of (1997); Muhammad, 581-82, 701 A v. 145 N.J. .2d State (1996). 33-34, Specifically, Jersey, in New 678 A.2d Rights,” Bill Legislature enacted the “Crime N.J.S.A. Victim’s Muhammad, supra, 145 52:4B-34 to -38. N.J. A.2d Legisla- 164. That amendment marked the culmination of the participation of crime victims in the ture’s efforts to increase justice system. criminal Ibid. Rights purpose
The of the Victim’s Amendment was to “enhance necessary protect role of crime victims and witnesses justice goal], In furtherance of process. [that the criminal persons through should be assured improved treatment of these (1985). specific rights.”5 52:4B-35 the establishment N.J.S.A. rights guaranteed for victims is have “[t]o One of the enumerated justice criminal participation inconveniences associated with possible.” 52:4B- process minimized to the fullest extent N.J.S.A. 36(d). ordinary meaning, find that
Giving those words their we preventing Rights Bill of was aimed at the Crime Victim’s on of the victim’s types hardship argued the State behalf are family. hardships documented the Kankas’ affidavits of the victim of a defines victim as "the nearest relative 5 N.J.S.A. 52:4B-37 as victims in this case. criminal homicide." The Kankas clearly qualify *34 556 day to the trip to Camden would add two hours a
significant. The spent away from their two already period of time substantial toll of the trial and the young surviving children. The emotional traveling greatly add to that burden. expense financial of would justify “respect,” supra, the trial of “fairness” Considerations very real harms the Kanskas would court’s decision to balance the changed suffer if venue were to Camden. give respect recognize that the trial court also must due to
We reversing change In of rights of defendant. the Constitutional order, court court does not see “[t]he venue the trial stated any rights resulting ...” from the diminishment of the defendant’s foreign jury. explicitly court empanel stated decision favoring rights of the victims over those of that it was not Rather, simply taking it was their concerns into defendant. consideration, previously. Taking it not done the concerns as had error, family into account does not constitute of the victim’s provided rights that the constitutional of the defendant are not infringed infringe- that decision. As we find no denied or on rights, reject argu- upon defendant’s constitutional we this ment ment. Option Empaneling Foreign Jury
C.
Harris,
458,
supra,
v.
A .2d458. Hence,
This trial was held
we
Harris.
when
before
decided
tried, “every
defendant was
intendment of our law was that the
*35
jury
empanelment
foreign
adequate response
of a
be an
to the
jury
subjected
realistic likelihood that the
would be
to adverse
publicity.”
trial
adhere to our
the
Ibid. We
observation
necessity
change
“barrage
a
a
requiring
of venue because of
inflammatory
expense
reporting” imposes an added
and inconve-
147-48,
nience on the
and the victims of the crime.
Id. at
State
cases,
capital
newspapers
1. a Hunterdon from jury County, having empanel a from Camden After decided argument agreed subsequent court to hear from State the trial County. empaneling jury in a from Hunterdon On favor of 29,1996, January granted empanel motion to the court State’s County jury argues Defendant that Camden a from Hunterdon. jury proper pool. was the change by foreign authorizes a of venue or trial
Rule 3:14-2
jury
jury
impartial
that a fair and
cannot
“if the court finds
However,
any guide-
not offer
otherwise be had.”
that Rule does
county
foreign
of a
selecting
lines in
for venue or the source
Harris,
Division,
N.J.Super.
in
v.
282
jury.
Appellate
The
State
remand,
409, 421,
(App.Div.1995), appeal
ABA Crim. Just. Sec. Standard find that the trial court did not abuse its discretion We County. empaneling from Hunterdon The trial court applied the Hams factors determining County that Hunterdon jury. appropriate foreign source for the The court first was the publicity in pretrial the nature and extent of considered and, extent, proposed counties. The Trentonian to a lesser Times, Trenton objectionable publicity were the main sources of about defendant. The circulation of the Trentonian and the Mercer, Hunterdon, Trenton Times and Camden Counties was as follows: Trentonian Circulation *36 1991 Hunterdon Mercer Camden 51,810 1,342
Circulation 110
Times Circulation 1992 Mercer Hunterdon Camden 1,796 60,215 Circulation under 25 upheld empanelment jury In a other cases we have the from county greater disparity present with a far circulation than that Harris, newspaper figures here. In the combined circulation 20,000 approximately Burlington County; were follows: as 6 following This factor was inserted Division in lieu of the by Appellate witnesses, "[T]he third ABA factor: relative on hardships imposed parties, regard venue;'' and other interested with to the persons proposed
559 3,000 County. County; 250 in Camden in Hunterdon We Burlington County jury approved empanelment of a because jury if significantly was not different than had “the net effect 150, County.” Similarly, 716 458. been from Camden Id. at A.2d Feaster, 395, supra, at 716 A.2d we allowed the N.J. County jury though higher it had a empanelment of a Salem even county. (Observing publicity proposed than the Salem level County publicity inundated with about the “was no means murders.”) case, papers circulation rates of the two for this combined County, County percent; for Hunterdon 2.8
Mercer
were 34.3
County,
percent.7
the as-
percent; and for Camden
.03
Given
publicity,
sumptions implicit
determining
pretrial
the extent of
weighs
that this factor
disagree
we
with the dissent’s assertion
661-62,
heavily in
favor. Post at
capital murder cases Camden Moreover, County pending capital five murder cases. Camden 1995, 2,057 September pending criminal cases indictment as of had 4,551 County post-indict- had Í47. had while Hunterdon Camden County Clearly, the pending, ment cases and Hunterdon had 180. favored hardships imposed prospective on the courts relative County. Hunterdon 3, parties the relative burdens on the and other interest-
Factor County. Traveling parties, favored Hunterdon between ed also contrast, By trip and Trenton takes about one hour. Camden Flemington, County, in and Trenton takes between Hunterdon Obviously, about 35 minutes. those travel times would affect how Moreover, day. long the trial could last each the area in Camden jurors relatively A dropped where the would be off was desolate. dangerous local law enforcement officer described it as a area circumstances, properly those the court deter- after hours. Given hardship for mined that would be less onerous Hunterdon County jurors. 4,
Concerning argues demographic factor County characteristics of are more similar to those of Camden County. County population Mercer As of Mercer had a 107,776 325,824. population was Hunterdon’s and Camden’s (hereinaf- Jersey Municipal New Data Book 1991-1995 502.824. ”). ter, comprised percent “Data Females 52.6 of Mercer Book Hunterdon, County, percent percent 50.1 and 51.9 of Camden $18,936, per capita in Mercer was counties. income $23,236 $15,733 in Hunterdon and in Data Book at Camden. 584- percentage college graduates percent 578. The was 19.4 in Mercer, Hunterdon, percent percent 23.4 and 13.4 Camden. Thus, many demographic respects, County Hunterdon Ibid. comparable was more to Mercer than Camden. however, regard demographics, to racial there was a
With disparity percent between the counties —Mercer had an 18.89 percent population, african-american Hunterdon had a 2.06 afri- population, percent can-american and Camden had a 16.2 african-
561 County jury pool in Hunterdon population. american Defendant’s 715, minority jurors pool in only contained fifteen a substantial- representation percent of 18.8 in ly less than the african-american County. argues Defendant the court should have Mercer closely jurors County since it more empaneled from Camden County. composition racial of Mercer Failure to do reflected the so, contends, rights. he violated his constitutional emphasized “right has that a defendant has the
This Court
jury
representative
from a
cross-
by
impartial
to trial
an
drawn
523,
Gilmore,
508,
community.”
State v.
103 N.J.
section
(1986).
3:14-2, a court must consider
562 violation, Equal an Protection
To establish decisionmaking pro purposeful discrimination must show 545, 550, 643, 646, cess, 17 Georgia, v. 385 U.S. S.Ct. Whitus (1967), discriminatory that had a effect on L.Ed.2d 603-04 States, 598, 608, Wayte v. 470 U.S. S.Ct. outcome. United (1985). 1524, 1531, Purposeful discrimination 84 L.Ed.2d particular course of *39 implies that the decisionmaker selected of,’ merely spite ‘in its part action “at least in ‘because not of ...” v. adverse effects Personnel Administrator Massachusetts 870, 256, 279, 2282, 2296, Feeney, 442 99 S.Ct. 60 L.Ed.2d U.S. (1979). Thus, claim, prevail to on this defendant would 887-88 jury a empanel to show that the trial court’s decision to from have by racially discriminatory purpose was motivated a or Hunterdon racially discriminatory anticipated the court a effect. because proven Defendant has not such intent or effect. remotely hinting that trial
The record is devoid of evidence
jury
empanel
County
a
from Hunterdon
court’s decision
discriminatory
changed
by
purpose.
animated
a
The court
venue
family
to ensure that
the victim’s
could exercise their State
right
present
at the trial.
It also considered
Constitutional
be
County
in proximity
the fact that Hunterdon
is closer
to Mercer
County.
day
That would mean more time for trial each
and less
jurors
that
The court also took
time
would have
travel.
into
juror’s personal security.
from
account the
Jurors drawn
Camden
dropped
dangerous
off in a
the trial court’s
would be
area. Given
considerations,
empanelment
on
we find that the
focus
relevant
jury
deprive
equal protection.
a
did not
defendant of
Hunterdon
deprived
Defendant also has failed to show he was
Amendment, in
rights under the Sixth Amendment. The Sixth
pertinent part, provides
enjoy
right
that “the accused shall
trial,
speedy
public
impartial jury
an
of the
State and
committed____”
district wherein the crime shall have been
U.S.
requirement
fair
Const. amend. VI. “The
cross-section venire
is
text,
obviously
explicit
not
in this
but is derived from the tradition
understanding
‘impartial jury’
al
of how an
is assembled.” Hol-
480,
807,
land,
at 916.
supra,
at
There is no evidence
jury’s ability
impartial. This ease does
venire affected the
to be
any racial issue but rather involves human concerns
not involve
people, regardless
and minds of all
of their
that touch the hearts
race,
religion
gender.
overwhelming
evidence
or
Given
defendant,
highly
from
against
it is
doubtful
Camden
Moreover,
or
have reached a different verdict
sentence.
would
composition
pool
would
there is no assurance that
County.
radically different
Camden
Because
have been
*40
press coverage in
basically the same amounts of
case received
Counties,
victim
the
and the
both Camden
Hunterdon
race,
properly
the
the trial court
decided
defendant were of
same
composition of
counties was an
disparate
that
racial
showing
illegal
a
important, but not the critical factor. Absent
discrimination,
jury
right
to a
defendant had no constitutional
County
might
it
have increased his
simply because
from Camden
jury.
having
more minorities on his
chances
in the
assertion that racial
We find little merit
dissent’s
demographic characteristics
demographics outweigh the other
663-64,
at
737A.2d at 137
in Harris factor four. Post
enumerated
Harris,
(Handler, J.,
N.J.Super.
dissenting);
supra, 282
at
see
demographic
... race is the
charac
“[WJhere
The dissent also asserts
magni-
constitutes a Sixth Amendment violation of such
Camden
that
it cannot be considered under the harmless error
tude
666-67,
(Handler, J.,
analysis.
right Supreme applied analysis to the Court a harmless error determining capital whether the defendant's should be conviction reversed. Jury on 2. Effect
Moreover, showing any no evidence defendant offers by being actually trial held jury prejudiced member was the jury contrary, the the evidence indicates that County. To Mercer throughout coverage the press untouched members remained trial. foreign jury the empanel to to a was
Central the court’s decision County had substantial fact that the Mercer court administrators necessary jurors protect from experience procedures in the to Harris gained “host[ing]” the trial. publicity, trial-related while morning transported and to up were each Mercer picked Jurors trial, on fifth floor the County. special area the Prior to jurors’ designated for the use. County Mercer Courthouse was jurors vital for them repeatedly court admonished that it was The any discussing the publicity avoid about the case to avoid anyone. matter with 5, 1997, May jurors told began trial on the trial court
When any with lunch the courthouse and avoid contact to eat inside subjected anyone then if had been outsiders. The court asked jurors negative. All answered in the accounts the case. jurors any if about the told to inform the court information court court told during attention the trial. The also case came their for somebody sources] “have screen media [all members to jurors day asked Every single of the trial court them.” seen, heard, they anything about case. or read whether had Every day, was no. the answer
Although brought inflammatory news stories about defendant basis, no ongoing on an there is trial to the court’s attention any inflammatory ever any of the members saw evidence that jurors great precautions took to ensure that publicity. The court immediately penalty example, For before remained isolated. moved to terminate the trial sentence phase, defense non-capital as because of the Trentonian’s offender juror any To coverage of the verdict. see whether unprecedented jurors could by publicity and adversely affected whether *42 impartial during remain penalty phase, individually the court questioned juror. each At the conclusion of the individual voir dire, jurors court determined that all fair remained and impartial. The court question jurors continued to about their exposure publicity throughout penalty phase. jurors they each time indicated had not any viewed or read information about the ease.
It preferable would have been if the trial court had not reversed change Nevertheless, its decision to venue. because of pre- court, cautions taken the trial empanelment the fact that of a foreign jury management was a technique valid at the time of the trial to avoid the prejudicial pretrial effect of publicity, and the lack indicating of evidence jury actual taint resulted from the trial being County, held in Mercer rights defendant’s constitutional infringed were not upon. The court’s decision to prior reverse its change determination to empanel venue foreign jury a not reversible error.
The record reveals that the trial court took more than adequate measures to danger “minimize the prejudice would infiltrate adjudicatory Harris, process.” supra, 156 N.J. at A.2d 458. The carefully weighed trial court the Hams factors selecting a from Hunterdon. There is no pur- evidence of poseful discrimination or actual Empaneling bias. from County Hunterdon infringe deny did not on or defendant’s consti- rights. tutional Accordingly, the trial change court’s decision to original its venue order is not an abuse of the trial court’s discretion and is not reversible error.
IV. Knowledge Jurors’ Suspicion or Prior of Defendant’s History
Criminal As A Sex Offender The court and counsel voir dired thirty-two three hundred and prospective jurors. pool, only Of that they five stated were prior unaware objec- convictions. Over defendant’s tions, jurors they qualified sixty-six who announced the court solely case on the evidence adduced trial could decide the jurors Only deliberating panel on the the court’s instructions. two suspect prior Nine deliberat- did not that defendant had record. jurors previously had been convicted ing suspected that defendant juror One knew about convictions. of a sex offense. *43 dire, of voir defendant asked the court to
At the conclusion jurors County. argued in He and reconvene Camden dismiss said, despite jurors they really not be able to set that what would prior Defendant now knowledge their of defendant’s record. aside jurors fair who he a trial because the deliberat- claims was denied prior disagree. he suspected knew or had a record. We ed A. The Law I, supra, trial
This
held that the
court’s
Court Williams
jury “under
responsibility
preserve
integrity of the
both
involving
peak
...
is at its
in cases
federal and state constitutions
641;
63,
v.
N.J.
459 A.2d
see also
penalty.”
the death
93
at
State
Ramseur,
324,
denied,
123,
(1987),
188
cert.
508
N.J.
524 A.2d
106
(1993).
947,
2433,
A “trial
an
113
Florida, 282, 302, 2290, 2303, 432 U.S. 97 S.Ct. 53 L.Ed.2d (1977)). Supreme pretrial Court has concluded exposure prior
to a defendant’s
conviction
the initial trial does not create
juror
an
presumption
prejudice.
Yount,
irrebuttable
Patton v.
1025, 1035,
2885, 2891,
(1984).
467 U.S.
104 S.Ct.
“[T]o
who are
put
able to
their
opinions
prior knowledge
or
aside from those who are unable to
fashion,
impartial
serve
an
the trial court must conduct a
probing
jurors.”
II,
voir dire of
supra,
[the]
Williams
court abused its discretion in determining jurors that the seated disregard could suspicions their knowledge and of defendant’s prior convictions impartial and render an verdict. We reiterate that the Constitution require ignorant does not jurors, only but jurors lay any who can preconceived aside notions judge
569
415, 430, 111
Virginia,
v.
U.S.
impartially. Mu’Min
500
defendant
I,
supra,
1899,
493,
(1991);
Marshall
1906,
S.Ct.
L.Ed.2d
509
86-87,
N.J. at
77,
finding
A
court’s
of
B. Knowledge role in its enact- Megan’s Law and defendant’s However, finding our supports the record widespread. ment was impartial jury that decided the that defendant was afforded an court, presented in than on informa- on the rather ease evidence gained publicity. tion from passage to secure parents
The victim’s led nationwide crusade May on notification laws. Their efforts culminated of sex offender 1996, passed requiring a law the United Senate when States system. implement state to sex offender notification News- each State, Times to the New from the Trenton papers all over the Today, carried story. Many York Times to USA for law inspiration articles mentioned defendant sex prior to defendant’s two offense explicitly and some referred convictions. dire of voir January on
Prior the commencement jurors to strike for cause all who preemptively defendant moved argued anyone Megan’s Law. Defendant knowledge had would, point, the connection knowledge at some make with this there, he or she Megan’s Law. From between defendant a sex prior had a record as offender. could deduce that defendant jurors’ questioning of a knowl- Probing to determine the extent problem and argued, not eliminate the edge, would likely it. would most exacerbate motion, way finding only that the rejected defendant’s
The court *45 jurors juror prospect that impartiality and to avoid the to ensure jurors question connection mid-trial was to made the forbidden Megan’s and defendant’s extensively knowledge of Law on their prior history.9 In colloquy explaining decision, his the court stated, gross prejudice The that would be visited on the defendant, should this connection during occur the deliberation or at some other earlier process, and not point, unjust disclosed, would have the clear an certainly result. capacity produce for such a forthright
potential circumstance is real, and must be confronted in a manner. So, day jury selection, on the first provided the trial court pool prospective jurors case, with an overview of including the fact that it involved the murder and sexual assault of seven- year-old Megan Kanka.
The trial court then conducted an extensive and careful voir juror, dire of each taking approximately three months. Each juror was asked to fill out a lengthy questionnaire containing questions ranging life; from: professional their to the newspapers read; they to their knowledge opinion of both the case and Law; Megan’s thoughts to their justice on the system criminal penalty; and the death ability to their to remain impar- fair and tial.
Specifically, Question # you 81 asked: “Do suspect believe or ... has a juror criminal record?” If the answered “yes,” she had to detail the sources of the suspicion belief or answer whether put she could that belief aside and follow the court’s juror instructions. Each provide also had to detailed information on the sources from which she received her news and whether regularly she read either of the papers. Trenton Each juror also was asked whether she had opinion formed an concern- ing guilt or innocence.
Next, the court attorneys and the engaged in extremely an detailed oral questioning potential juror, of each specifically prob- ing any questionnaire signaled potential answer that bias. De- On jurors 1997, defendant April renewed his motion to strike all who had a belief or arguing defendant had suspicion record, criminal prior that 95 filling percent out the people that had questionnaires been reviewed thus far knew or that defendant had a suspected record. That motion prior denied. *46 questioning. to conduct additional fense counsel was allowed jurors’ focused on the knowl- Throughout process, the the court Kanka, Law, defendant, Megan Megan’s against the edge of crime the basis of voir feelings thoughts their and about each. On and dire, jurors no seventy-one who either had qualified the court (five jurors) or who knowledge prior convictions of defendant’s impartial prior they but said could be knew about the convictions jurors). jury The was selected. (sixty-six then trial, jury repeatedly expressed to the Throughout the the court only pre- evidence importance evaluating the case on the the strenuously jury to at warned the “insu- sented trial. The court case, ju- discussing from even with fellow late [themselves] radio, television, “from from rors” and to insulate themselves bytes newspaper as and other media as well from the sound accounts____” jury admonished the points, At various the court accounts, accounts are not “[n]ewspaper media to remember that upon or third hand They based second [are] evidence ... often hearsay.” “simply is unreliable.” reports, on Such evidence case on the basis evidence jury’s “obligation is to decide this trial of this ----” you during the course that comes before importance jury, again explained the charging the court know, you your at “As using only presented evidence trial: this evidence comes obligation case on basis of is to decide trial____” judges, you this “You’re during the course of before truth interest is to ascertain the judges of the facts. Your sole presented____” from the evidence bias, without case of the evidence without
You must decide the
on the basis
prejudices,
prejudice,
our
our
all have our
without
We
sympathy.
predispositions,
legal rulings
courtroom,
not
in this
they may
influence
may
but
sympathies,
they
things,
jury
prejudice,
have no
bias,
verdict. These
sympathy,
not influence the
in the
deliberation room.
place
Again May
on
30 the court reminded
throughout
proceedings, following
jury that
these
remain
kind of
have been
you
deciding
paying
this case on
basis
attention,
close
instructions,
editorials,
not on the basis of opinion pieces,
evidence that comes before you,
whatever it
be.
may
record,
Based on our examination of the
we conclude that
defendant was tried
impartial jury
a fair and
guilt
at both the
penalty
and
phases of the
process
trial. The voir dire
was carried
meticulously
out
thoughtfully
jurors
to ensure that the
ulti-
mately empaneled could render a fair
impartial
verdict and
solely
sentence based
on the
presented
evidence
Many
*47
trial.
potential jurors admittedly could not set aside
knowledge
their
prior
defendant’s
jurors
convictions. Those
were dismissed. The
jurors who
jury
subjected
sat on the
were
painstaking question-
to
ing. Their answers
they
convinced the court
disregard
could
prior
defendant’s
suspicion
record or their
of that record and
solely
decide the case
on the facts introduced into evidence at the
proceeding. We will not overturn the
merely
court’s decision
jury
because the
might have known of
prior
defendant’s
convic-
tions. There is no evidence that such
corrupted
information
their
deliberations.
presume
We will
jury
that
adhered to the
Muhammad,
court’s instructions.
supra,
52,
In Koedatich supra, 285, 112 939, N.J. at 548 A.2d defendant also moved to any juror excuse for cause who read or heard about the In denying case. request that we stated: “[i]m- plicit in defendant’s contention that the trial court should have excluded any juror for cause who read or heard about the case is the notion that voir dire is an ineffective means of determining juror prejudice under such circumstances.” Ibid. We declined adopt “to such a rule for which support we find no any in this or jurisdiction. fact, other In such a rule would be inconsistent with long-established precedent holding that acceptable jurors need not Ibid, entirely ignorant be of the matter at (citing hand.” Murphy Florida, 794, v. 799-800, 421 U.S. 2031, 2035-36, 95 S.Ct. 44 589, (1975)). L.Ed.2d 594-95
We
disagree
further
with defendant’s assertion that
v.
State
Brunson,
377,
(1993)
132 N.J.
Even where
tions,
of a
when evidence
defendant’s
we have refused
reverse
Harris,
supra,
overwhelming.
In
156 N.J.
guilt was
its
court
not abuse
discre-
“[t]he
A.2d
we held that
trial
did
though
juries
trial” even
failing
empanel
two
before
tion
might
prior
have
long
or all Harris’
list of
convictions
some
during
also
v.
brought
jurors
trial. See
State
been
attention
(1990)
(holding
prior
Pennington,
A.2d 816
119 N.J.
impeach
could
admitted into evidence
murder convictions
be
trial).
Pennington,
testifying
capital
in his
murder
Id.
prior
murder conviction.
learned of
*48
573,
of “the
refused to reverse because
at
Unlike evidence, nor admitted into acts” were never tions “bad during trial or summa- the State by defense counsel or mentioned prior evidence of defendant’s did not even offer tion. State claim of to rebut defendant’s penalty phase in the convictions requested “remorse.” also never Defendant the case be tried by juries. two Given defendant’s confession and the overwhelm- him, ing against suspicion knowledge evidence of or defendant’s prior jury’s convictions would not have affected determination Megan of whether penalty phase. he killed or the outcome of the Moreover, request in the absence of defense counsel’s for limiting prior convictions, on the instructions use defendant’s we do given not find that trial court should have such instructions sponte guilt sua or penalty phase. prior either Defendant’s brought jurors’ only convictions to during were attention voir dire screening jurors as a mechanism to eliminate who would be only unable to decide case based presented on the evidence prior trial. Defendant’s convictions were never into introduced Indeed, the record or confirmed the court. the trial court redacted as inadmissible all references in defendant’s confession prior his repeatedly convictions. The court also admonished jurors only to consider light evidence in the record. circumstances, those compelling the trial court to issue instruc sponte tions sua have would marked an unwarranted intrusion strategy into defense counsel’s have damaging would been defendant.
The court problem was faced with an unusual this case. There was national and publicity regarding state-wide Megan’s Law. Jurors knew about the law and defendant’s role in its circumstances, enactment. Under those the court needed jurors they screen carry to ensure could out their impar- task of tially judging guilt. jurors’ defendant’s into Inquiring knowledge Megan’s about Law and prior history criminal awas way reasonable problem to deal with that and not an abuse discretion.
We allowing jurors therefore conclude that jury, serve on the despite suspicions previously *49 that defendant had been of convicted offenses, sexual was not reversible error. We further conclude give limiting sponte instructions sua would have been inappropriate not changed and would have the outcome of the
575 relied phase. indicia that penalty There were sufficient suspicions of presented, not their only on and on the evidence reaching decisions. prior convictions in their defendant’s
V. Prosecutorial Misconduct prosecuto- numerous instances Defendant also maintains that trial, misconduct, penalty phases and guilt rial in both the error. constitute reversible upon prosecutorial misconduct for reversal based standard severity an requires in the law. It evaluation
is well-settled
the defendant’s
prejudicial
and its
effect on
of the misconduct
miscon-
long
that,prosecutorial
have held
right to fair trial. We
unless the
grounds
not
for
of a criminal conviction
duct is
reversal
deprive
of a fair trial.
egregious as to
conduct was so
(1997) (Chew I);
Chew,
84,
30,
A.2d
v.
150 N.J.
695
1301
State
denied,
219,
634,
Roach,
208,
519
N.J.
680 A.2d
cert.
v.
146
State
Ramseur,
(1996);
1021, 117
540, 136
supra,
424
L.Ed.2d
U.S.
S.Ct.
322,
applies
test
A.2d
The “fair trial”
106 N.J.
524
188.
at
I,
guilt,
in both the
Koedatich
alleged prosecutorial misconduct
320-25,
939,
phases of a
penalty
A.2d
supra, 112
at
548
N.J.
816;
565, 575
Pennington, supra, 119 N.J. at
A.2d
capital trial.
Rose,
509-11,
A.2d
supra,
To must unmistakably improper,” and have sub “clearly and been right to stantially prejudiced fundamental have Roach, supra, 146 N.J. merits his defense. fairly evaluate the 378, 411, 634; 577 219, Hightower, 120 N.J. 680 State v. at A.2d II, A.2d (1990); supra, 113 550 N.J. A.2d Williams were determining prosecutor’s comments 1172. whether trial, we consider sufficiently deny defendant a fair egregious responsiveness of counsel and the trial the tenor of Scherzer, they v. occurred. State improprieties when court Specifical- (App.Div.1997). A.2d 196 N.J.Super. *50 576
ly, the Court consider “whether defense counsel made a should timely objection, proper and remark was whether the withdrawn promptly, the court and whether ordered the remarks stricken from disregard the record and instructed to them.” Ramseur; I, 188; supra, N.J. at 322-23, supra, Chew A.2d 106 524 84, 150 N.J. at 695A.2d 1301. objection if
Generally,
no
improper
was made to the
Ramseur,
remarks,
prejudicial.
the remarks will not be deemed
supra,
323,
106 N.J. at
524
timely
A.2d
Failure to
188.
make a
objection
indicates
defense counsel did not believe the re
v.
prejudicial
they
marks were
at the time
State
were made.
Irving, 114
427, 444,
(1989).
N.J.
object
Even defense counsel fails to [a] remarks and actions must prosecutor’s at all times be consistent with his her or justice to ensure that is duty achieved. Absolute adherence to is this duty stringently eases where the is death. compelled capital penalty (1990) (citations omitted).] Long, [State v. 119 N.J. A.2d 435 A. Guilt Phase alleges
Defendant prosecutorial numerous instances miscon- duct in guilt phase. Specifically, alleges errors prosecutor’s statements, opening closing in her examina- tion of witnesses and denigrating comments the defense. The claims, general defense, State prosecutors’ as a state- upon ments reasonably were based inferences from drawn therefore, presented evidence proper. were object Because defense counsel any did not prosecutor’s remarks, many opening or to other remarks now misconduct, prosecutorial claimed to constitute defendant must Irving, supra, v. plain prevail. demonstrate State error N.J. 575. 555 A.2d Plain “error possessing error is a clear capacity bring unjust an substantially about result and which prejudiced the right defendant’s fundamental have the Ibid, (citations omit- of his defense.” the merits fairly evaluate ted). Opening Statement
1. *51 introduced two prosecutor argues that the
Defendant throughout returned to that she opening statement her themes perversion trial, defendant’s sexual error: which constituted the the crimes. crimes; emotion after and his lack of the before statement, defendant’s prosecutor described opening In her way: following Megan in the interest Megan. To the had noticed that the defendant not the first time This was watching little that had been man, defendant, that that will learn contrary, you anything Megan, thoughts but girl pure. on his had his eye months. He had for that Megan know about house. She couldn’t walked into that And so of a One was filled with vision puppy. she her head walked, So when defendant. imagine head. filled the defendant’s visions that can only fol- of emotion lack also described defendant’s prosecutor to the that defendant denied by: pointing out lowing the murder victim; describing how had seen the mother that he victim’s body in a caleulatingly placed the victim’s calmly and contrasting demeanor defendant’s disposal; and toy chest for relatively response emotional crime with the following the investigating officers. only may state statement opening in her prosecutor
A
may
good faith. She also
prove in
intends to
facts that she
those
facts.
may
from those
drawn
properly
that
be
argue all inferences
damaging
all
Chew,
1301. As
supra, 150 N.J. at
695 A. 2d
prosecutor
the court affords
inherently prejudicial,
is
evidence
However, the
Ibid.
making
opening.
her
leeway in
considerable
propriety to ensure
the boundaries
patrol
court must
compromised.
not
a fair trial is
right to
phase opening state
guilt
Evaluating
prosecutor’s
curative instruc
trial court’s
entirety along
with
in its
ment
statement,
although
that the
tions,
to conclude
are unable
we
right
deny defendant
as to
prejudicial
improper, was so
times
to a fair trial.
opening
Most
the statements in the State’s
were
a fair
actually produced
comment on the evidence
at trial. The
prosecutor commented on
in kidnapping,
defendant’s motive
sexu-
ally assaulting
murdering
Although
the victim.
such informa-
highly prejudicial
tion was
inflammatory,
it
excerpted
from defendant’s own confessions that were admitted into evi-
previously
dence. As
recognized,
always
we
have
admissions are
Kuske,
prejudicial.
575, 588,
v.
N.J.Super.
State
Moreover, the court’s mitigated instructions the likelihood of error. clearly The trial court advised the opening statements are not evidence. “Opening statements are a means to [jurors ... alert to] what the case is all ... about it’s somewhat *52 like a map you road to tell where ... the going go, state is to perhaps indicating witnesses, the witnesses and the order of what expected witnesses testify are to expectations. to. But those are evidence____” That’s not presume We jury that the followed the specific court’s regarding admonitions opening the role of state- Feaster, ments. supra, 156 Therefore, N.J. at 716 A .2d395. we prosecutors find no evidence that the substantially remarks prejudiced right to a fair trial.
2. Testimony Regarding Elicitation Demeanor of Defendant’s
Throughout witnesses, its examination of prosecution the inquired into defendant’s emotional state following the crime. Specifically, objects defendant to a number of remarks elicited from Detective Sergeant O’Dwyer. Pukenas and
Detective Pukenas testified that defendant recounted the mur- der to accompanying the officers a “normal tone of voice.” The Detective also stated that “I think only he was the crying.” one not propri- the bounds may have crossed Although questioning this following instruction: curative ety, court issued the disregard. His emotional state should be instructed I think, That part, His evaluate all of the understand, testimony. time is relevant for you at the disregard judgment. Go ahead. the last statement. Please is not, my reaction prosecutor then continued: The an accident? that it was car on the back way say he ever in the Detective, did
Q. never said that. A. He to kill her? that he didn’t mean Did he ever say
Q. all. that at
A. He never indicated her? that he lolled he ever he was sorry Did say
Q. never said that.
A. He remorse? whatsoever that indicated words Did he ever say any
Q. Nothing that at all.
A. like interrogation during the redirect, point noted that at one On prior to that more than he had “talking a little bit remorse.” would indicate any of voice that not in tone ... [b]ut conclusory objection to the counsel’s sustained defense The court disregard it. and told about remorse statement O’Dwyer, prosecutor Sergeant direct examination On during state emotional testimony regarding defendant’s elicited asked prosecutor When the first confession. writing cried [defendant] in time when any “point there was whether objection court sustained The trial during this statement?” that, gentlemen. Ms. ladies and disregard “Please and stated question whatsoever.” Flicker, for that no reason there was defen- O’Dwyer to read Sergeant then asked prosecutor so, O’Dwyer broke doing jury. to the While statement dant’s the court’s himself, O’Dwyer accepted in tears. Beside down day. testimony next his and continue to take a break invitation continued O’Dwyer if counsel assured defense The trial court counsel, Defense read the statement. else would cry, someone *53 on the while emotional also had become officers noting that other “farce.” testimony was a stand, that such suggested to the court the record stated on court then disagreed. The court The trial expected to be O’Dwyer’swas such as moment” an “emotional that from jurors time to time and any admonished the to set aside response O’Dwyer’s emotional breakdown. court reminded rely solely them to on the evidence. morning, jurors
The next O’Dwyer’s the court reminded that response they rely was not evidence and that solely should on the judge juror evidence. The if any then asked had been affected. juror responded. No alleges
Defendant prosecutor’s ques that the line of tioning improperly emphasized defendant’s lack of remorse. He suggests prosecutor’s primary that the purpose engender was to contempt for improper However, defendant. That is an motive. because defendant’s case, confessions were critical to the State’s we that find defendant’s emotional state and state of mind when he confessed They are relevant. demonstrate that defendant’s knowingly, confessions were made voluntarily intelligently. They show that he was in full command of his faculties and not by Moreover, overcome emotion. prosecutor’s questions were record, based on evidence in objection and each supple mented with a reasons, curative instruction. For all those we do prosecutor’s not find that questions concerning defendant’s demeanor and emotional plain state constitute error. respect O’Dwyer’s breakdown,
With we further find any potential prejudice by was ameliorated the curative given instructions immediately both after and on morning after the incident. The court also received affirmance from the jurors they were not affected emotional At outbursts. most, prejudice minimal resulted from that questioning. line of Repeated
3. Concern Over His Hand Reference Defendant’s Anger
and Related Towards Victim crime, During the the victim bit defendant’s hand. At the police station, defendant stated at least three times that he inwas pain considerable and blamed the inflicting victim for the wound. *54 Askin, dentist, at the Dr. examined defendant’s hand a forensic analysis. performed bite-mark identification and station and trial, at the Sergeant Stanley testified about those events At police He was asked: station. further of the hand? there mention
Q: any Was being again, A: his hand hurt he felt and, Yes. He continued about complain injury. Megan he blamed her for that was that responsible reject argument questioning that this line of We defendant’s Questions regarding was defendant’s hand constitut- prejudicial. of crime The evidence ed evidence how the occurred. relevant on the bite also corroborates forensic determination hand was made the victim. defendant’s Dr. Askin’s Victim’s Repeated Removal 4. Reference Jaw Lower had the victim’s lower
Dr. Askin testified that he removed jaw autopsy a model her teeth. The during the to make ques throughout that fact prosecutor repeatedly referred to sidebar, where he The trial court called counsel tioning. reprimanded prosecutor: something bigger four times now with, I and that’s Let me tell have you problem the removal resulted with responses, asked you’ve questions jaw jaw. the lower was it relevant as to where very I asked you lower specifically, making it I think that’s You said was. It wasn’t.
was used for impressions. stuff. inflammatory Dr. Askin repeated reference to the fact that prosecutor’s The have during an should not jaw autopsy victim’s removed the lower harshly recognized much and The trial court as repeated. been conformed prosecutor. prosecutor promptly The reprimanded the We, therefore, conclude his to the court’s instruction. questioning question- most, from line of prejudice minimal resulted this that at ing. Perversion Sexual
5. Defendant’s Reference portions Sergeant O’Dwyer to read prosecutor asked that the jury. argues Defendant statement to the excluded, excerpts they portrayed should have been as him as a pedophile pervert. Specifically, or sexual objects to the following portion: elicitation of the bringing Q: What intention of her into the your house? *55 just get
A: intentions were to feel her and kiss her My and her not to up try anything. hurting I didn’t want say to hurt her but I knew I was physically, doing. her what I was mentally by What do mean feel her Q: you by up? legs
A: Rub
hands
and down
my
her
and feel her butt.
I
up
learned that my
younger girls
main attraction to
was the softness of their skin.....
clearly
suggest
statements
that defendant was attracted to
young girls and
feelings.
acted on those
However harmful to
defendant,
find
properly
we
the statements
were admitted. The
prosecution
vigorously
is allowed to
forcefully present
the
Rose,
supra,
State’s case.
We also argument defendant’s that the statements im- properly uncharged referred to misconduct. The court redacted all portions statement, i.e., inadmissible of defendant’s those that referred to prior his portions convictions. The admitted did not specifically inform the of prior crimes and went only to the evidence in this ease. Introduction of this relevant evidence was not error.
6. Elicitation Testimony Regarding Prints “Smaller
Person” Found in Bedroom Defendant’s
The defendant also testimony cites Officer regard Shaw’s ing fingerprint evidence taken from proof defendant’s bedroom as prosecution that “smearing was defendant.” Officer Shaw testified that he found a fingerprint latent on the dresser mirror during an authorized search of defendant’s bedroom. Shaw de “just scribed the evidence as portion print, small of a as if it could have person.” been made a smaller Defense counsel objection objected, overruled his and allowed Shaw but court fingerprint did match the victim’s. explain that the not view, testimony implication of this was “[t]he In defendant’s suggested another child in his it that defendant had had clear: Thus, testimony “implfied] time.” bedroom some other, misconduct.” Defen- guilty had been similar him deprived of a fair trial. dant contends this this any prejudice resulting find that from comment was We regarding person” the “smaller minimal. Shaw’s statement investigation. It came police report detailing in his his contained by the during testimony specifically and was not elicited out Moreover, immediately prosecutor dropped prosecution. subject pressing returning nor to the there- inquiry, neither Shaw pressed by not Because was brief and was after. the comment produced improper given it not have an result prosecution, could against overwhelming evidence defendant. *56 Alleged 7. Other Incidents Misconduct of improperly: argues prosecution that
Defendant time of change appearance between the addressed defendant’s “village pervert”; depict and defendant as the crime trial victims; touching clothes but not the gloves when defendant’s used talking to testimony the victim’s mother cried while elicited by his investi disparaged questioning and defense counsel police; questions regarding technique. The State maintains gative accurately was appearance that defendant established defendant’s perpetrator as the crime. identified Although argument that identification was the State’s nothing sugges convincing, overly in this case not we find issue is the fact prosecutor’s questioning. Nor do we find that tive in the gloves handling defendant’s prosecutor plastic while that the wore clothes, handling capaci not the victim’s had clothes but while for improper fair ty deprive of a trial. Neither it defendant cried the fact that the victim’s mother prosecutor to elicit The daughter’s clothing. pieces she was her when shown testimony simply explained police Moreover, any conduct. error resulting questioning from this line of was cured when the court promptly objection. sustained Finally, although de- correctly objected fendant prosecutor’s to the suggestion that the obligation defense had an to examine photographs the casts and prepared by Askin, Dr. any prejudice the trial court cured in this accurate, regard prompt, awith and clear statement of the law. 8. Guilt Phase Summation
Defendant guilt phase characterizes the summation as “a prosecutorial moveable feast of misconduct.” inappropriate summation, claims, ness of the by is itself sufficient to warrant reversal of his conviction. He claims the following solilo quy both slanders his character jury: and inflames the What kind of man could do such awful deeds? What kind of man could commit such evil acts? The kind of man who could a child’s cavalierly and dump body make his next executing WAWA. The kind of stop man who after could, her daughter, look Maureen Kanka in the within eye, minutes, and not flinch. The unmitigated gall kind of man who had the to offer to hand out fliers for the child just
whose life he had snuffed out. The kind of man over the who, course of two brutalizing could talk about the days, murder and the of a rape child and never show a Megan’s shred emotion. The kind of man who could talk about death and blame her because his hand hurt. The kind of man like the Defendant. The Defendant killed to his own self interest. protect He he claims to killed, Megan get because he Megan protect himself, didn’t want loose. He didn’t want rage. to tell on him. He didn’t kill in a He didn’t kill in a He didn’t kill panic. killing calculating chilling accident. This was so cold and so that it is in the extreme. Defendant further following claims the allega- statement was an uncharged tion of misconduct: lusting He had been Sergeant for this child for or weeks as he months, told Stanley watching girls on getting He had been Sunday. little for weeks and months, feelings image those appalling for them. It is an that is so that it is hard to put *57 lusting
into words. He had been after this child. objects Defendant also to prosecutor’s reference to the fact that defendant did not call to the stand individuals that he claimed actually prosecutor stated, committed the murders. The “based upon you saw, you all you and all heard and all know about his behavior, one bit of is there activities, his you know about and all Cifelli]?” Jenin or covering up for testimony suggest [he to finale: prosecutor’s objects to the Finally, defendant image more jury, Is there any in the park. sexual violation Members had After all that he than that one? more there act depraved Is any despicable? bags time. He didn’t rip one more had to violate her and he child, done to finger vagina. Can there by in her He stuck his save her. head to to try off her intent? of his any question kill, to a man who wanted off. This was then he drives and her, He dumps knowingly or by kill and did kill, kill, purposely chose meant kill, intended his conduct. own anything mention about hear him once, even once, did statements, you In those laugh Megan and never would never Megan suffered? what she had or concern for Megan he blamed dead and hurt. again, lay that his hand and he was upset smile morgue Megan and he wanted table, was on a his hand. the wound on her for band-aid. image childhood dog. more to evoke playing that does Is there any with a A child innocence, brings is, happiness, childhood mind all that It than that one? laughter, trust. expressed The court objected. counsel defense point At this but, noting no language the “childhood” about some concern overruled spoken, language was jury when the from the reaction continued: objection. prosecutor The counsel’s defense Megan. You again, will see mind’s eye you a scene your see such you Whenever think— laugh, will smile, will see her you her you will see his court overruled again; the trial objected counsel Defense eventually concluded continued objection. prosecutor with: justice, come begin must and that one word to do that can is one word
There only knowing murder guilty. or as to Guilty purposeful that word is from And you. single indictment. count as to every conduct. Guilty his own raped, that the Defendant Through kidnaped, to announce I ask verdicts, you your Megan. Thank you. murdered sodomized and *58 summation, Following spoke the trial court jury. to the He said the summations on both sides were understandably emotional However, “because this an emotional prosecutor’s is case.” the- last comments were “too emotional in specifi- nature.” The court cally jurors disregard told the to portion the of the summation asking “why, why, of, Megan may what thinking things be of that nature____” jurors courtroom,
After the left the defense counsel moved for a mistrial, noting that while interrupt somebody’s she hated “to somebody’s summation or opening,” she wondered if she “was doing right thing by sitting there not objecting,” given and “inflammatory” prosecution. remarks of the
The court that, overall, denied the mistrial motion. He found prosecutor’s comments were based on the facts in evidence and were not overly-inflammatory given the circumstances of the case. The trial court further jurors noted that he had watched the and had not any observed adverse affects.
When court reconvened following day, the trial court ad- monished they that accept were not to the comments Rather, made on summation clarified, as evidence. the court “if attorney evidence, recollection of the regard with testimony presented you before yours, does not with you coincide duty are under a disregard those rely your comments and to on own recollection ... you because judges are the sole of the facts.” The trial court continued: But instruction to my at this time is you and it’s direct, this: Please separate disregard images as see completely you fit, emotional words, words or or phrases language that have a to inflame from tendency that has come descriptive before argument that moves the you of counsel forward, that is relevant to a discussion of the evidence Language and the inferences that flow from the may evidence. goes understanding to an Language of that is certainly acceptable. would generate inflame and serve no other than to purpose, or has no sympathy passion, in the has no things place room, place any decision that make. So [you] prejudice, such as bias, must be excluded, and I instruct sympathy to use you your good judgment considering when
very are you summations of counsel in this regai-d. expected make criminal cases are
Prosecutors juries. arguments We afford vigorous closing forceful leeway closing arguments long so as prosecutors considerable *59 reasonably scope to of the evi their comments are related the Harris, 525, 559, 662 presented. v. 141 N.J. A.2d 333 dence State (1995). in recognized Clifford in his dissent State Ibid. As Justice 288, (1974): 305, DiPaglia, A.2d 385 v. 64 N.J. 315 charged proceedings. not is trials A emotionally expected Criminal are prosecutor manner to a hall. He is entitled to be to conduct himself in a lecture appropriate jury, long graphic so he confines himself to and in his summation to the as forceful fair on the evidence presented. comments omitted.]
[citations
Nevertheless,
primary duty of
is not to
prosecutor
the
a
Ramseur,
justice
to
is done.
obtain convictions but
see
320,
hisiduty to
524
188. “It
as much
supra, 106 N.J. at
A.2d
is
produce wrongful
improper
from
methods calculated to
refrain
bring
every legitimate
use
means to
about
conviction as it is to
(1972)
99, 105,
Farrell,
We improper. were pertaining evidence testimony trial will involve necessarily physical
Any capital
though
used in a manner
evidence,
admissible,
This
cannot be
to
victim.
jury that
intertwines
to
confuse or
it
impassion
inappropriately
calculated
so
are
There
occasions
irrelevant emotional considerations with relevant evidence.
relating
be
to the victim’s character
may
probative
when evidence
personality
e.g.,
or
self-defense
trial,
critical
of the
defendant’s assertion of
provoca-
aspects
no
us,
before
victim’s character has
tion.
as
the matter
Where, however,
guilt
bearing
or the
to be
imposed,
on the substantive issue of
penalty
in a manner
that selves
not comment on the evidence
only
prosecution may
jury.
highlight
to inflame the
the victim’s virtues
order
1172.]
A.2d
II,
113 N.J. at
[Williams
451-52,
supra,
II,
in this ease
prosecutor’s
As in
remarks
Williams
life
with the terror she felt at
victim’s
and dreams
contrasted the
II,
And,
prosecutor
as in Williams
this
the moment of her death.
mercy
a defendant who
angel
as an
at the
depicted the victim
testimony
regarding
amoral,
by eliciting
at trial
defen-
e.g.,
dant’s
following
stoic demeanor
the crime and concern over his
Pennington, supra,
hand. See
566-567,
at N.J.
Second, despite flagrant the case, misconduct this the trial court was effective in diminishing prejudicial its effect. In most misconduct, instances of the court proper objections sustained by defense counsel and offered curative instructions. The court also post-summation reminded the instructions that this was an therefore, emotional case and the summations were understand- to deter- court admonished as well. The ably emotional evidence the record. guilt based on the mine guilt overwhelm- was evidence of defendant’s importantly, Most inculpatory on the primarily case was based ing. The State’s Those state- after the murder. made statements and witnesses. by other evidence were corroborated ments defendant, that we find overwhelming against evidence view of clearly capable not guilt phase in the conduct prosecutor’s as to prejudicial not so unjust result. It was an producing therefore, We, refuse to reverse fair trial. deprive defendant of a ground. this on Penalty Phase
B. at the govern prosecutorial conduct
The standards capital trial. phase of a apply penalty at the guilt phase also 119 N.J. A.2d 816. Because Pennington, supra, comments, we must object many did not counsel defense Again, our plain standard. under a error the contentions evaluate so misconduct was prosecutor’s whether task is determine of a fair trial. deprive defendant egregious as to “overriding theme” prosecutor’s contends Defendant counsel of defense disparagement during penalty phase was objects portions of to four strategy. specifically He and defense statements; the cross examination opening testimony: Ray- Sergeant experts; the direct examination the defense responds that the chal- mond; summation. The State and the responsible jury that it was merely reminded the lenged remarks presented. weighing the evidence for *61 Opening Statement 1. prose in the following comments objects to the
Defendant opening statement: cutor’s will be of defendant’s evidence clears, smoke much that when the are confident
We evaluating of the evidence supports the reliability When your eyes. suspect things into consideration. mitigating essential to take factors, couple it’s all, First of when was the information Was it in of this one, reported? anticipation being an or to the penalty phase reported authority prior penalty phase anticipated? complains jurors Defendant that the statement “misleads” the by suggesting obligation provide that defendant had some regarding mitigating argues evidence factors. He also that the phrase suggests “when the smoke clears” that the defense was deceptive trying to hide the truth. The State counters that placed proper prosecu- the remarks must be context. The asking jury tor was origin mitigation to consider the of the presented by evidence the defense. objectionable nothing
We find about the statements. It is improper not timing to ask the to consider the of evidence production. Documentary evidence in existence before defen prosecution dant’s would gathered be more credible than evidence anticipation penalty phase capital of a murder case. The person providing bias and interest of the the information also is relevant.
The trial court advised opening that the statements were not evidence. further We observe that defense counsel did object not Placing context, to those statements. the statements in prosecutor’s require conduct not does reversal of defendant’s death sentence.
2. ofKrych Podboy Cross-examination prosecutor’s Defendant asserts that cross-examination of mitigation expert, Krych, defense psycholo- Carol and the defense gist, Podboy, highly Dr. was improper. disagree. We
Krych’s testimony prosecutor was evasive and sought bring that out on prosecutor cross-examination. The also sought Krych’s Although demonstrate bias. prosecutor’s during Podboy’s comment Dr. examination regarding defense strategy improper, Therefore, was that comment was stricken. no prejudice Inquiry resulted from that incident. into the circum Podboy’s diagnosis stances proper. otherwise *62 reversal of defendant’s instances do not warrant The above objec- counsel’s court sustained defense The trial death sentence. Podboy Krych and of and improper cross-examination tions Accordingly, we find case. instruction each offered a curative unjust result. producing an prejudice capable no Raymond, Sergeant Direct Examination 3. County assigned by the Mercer
Sergeant Raymond was background. Ser investigate defendant’s Office Prosecutor’s broth Timmendequas, Paul geant Raymond met with first time on er, investigation. For the eight during his times testimony Sergeant objects following to the appeal, defendant with Paul: from the interviews Raymond, taken doing anything through well, I asked him, for the defense.” And A. I “I’m quote, through doing anything “I’ve said, the defense? And he with are why you caught I’m of them.” in so sick lies, them many mitigation [defense about Lois and Carol experts] Did he make comments Q. anything willing being to win this case? to do two-faced Objection, Judge. Leading. MR. GREENMAN: Objection sustained. THE COURT: the defense testimony discredited argues that that
Defendant being deceptive. The State defense was suggested team Krych and Nardone were about that Paul’s statements contends given to the weight to be jury’s consideration of the to the relevant evi- Sergeant Raymond provided testimony. agree. expert’s We determining jury to hear important for the dence that was 607. See N.J.R.E. were credible. defense witnesses whether Raymond’s excerpts from argues that other further Defendant concealing evidence. We testimony implied that the defense those contentions. find no merit to Penalty Phase Summation
4. penalty prosecutor’s claims that
Finally, defendant upon the character unmitigated assault” “an phase summation was argues Defendant the defense witnesses. counsel and of defense following passages imply dishon- defense counsel was trying jury: est and mislead *63 photographs showing showing residences, Have seen of those you any showing gatherings? photographs Do think that those family, family you things not have documented were as the defense would believe? Do you you rags think that if those showed shacks and and don’t know photos squalor, you you have would seen them? would have been here size. But didn’t They you poster In see of them. didn’t hear about those albums and that existed any fact, you they brought and that Carol had them until I it on cross-examination. Krych up Again, jury, given members of the think about what hasn’t been to what hasn’t you, integrity been revealed to when assess the of the defense you you presentation. improperly suggest Defendant claims those statements the de- withholding fense was unfavorable evidence. trial prosecutor
The court directed the not to on comment who experts. to call defense chose as The trial court instructed the prosecutor only qualifications experts to comment on “the of and said, they things what have of that nature.” court The also jury instructed the decision-making “[t]he defense as to who defend, defense, experts, to obtain as how to to how structure the types things those not you are for consideration for the any type any should exclude of reference or inference that could that____” regard be made with Defendant nevertheless con- stronger tends that a instruction was needed. challenges prosecutor’s
Defendant also discussion of Krych’s testimony. prosecutor witness The stated: On direct examination she told that she worker, was forensic social and her you job background was to fair this and balanced of the present you picture and childhood. What didn’t learn until cross-examination was that Ms. you Krych mitigation was a and one who was for her capital specialist, role handsomely paid this case. And if will recall, she would not admit that she was a ironically, you mitigation until I confronted her with her own notes capital specialist where she described herself that way. If the defense so that, is then did she take such proud it why pains deny oath until I under confronted her with it? job suggest Her her I role, case, this was to you, present picture defendant as as It if sympathetic didn’t matter the truth had to be possible. stretched. It didn’t matter if information was left out or omitted. Truth became irrelevant. of Paul challenges prosecutor’s discussion Lastly, defendant stated: Timmendequas’ prosecutor statements. for what [Paul] now that his brother should die
You have also heard that believes what he did. This is own thinks he should die for he did. The defendant’s brother suggest. compelling, I would very change opinion was fair of Paul’s conceding that evidence While far. The prosecutor went too game, argues that that, arguing if the defendant’s own “essentially prosecutor was who was the thought appropriate, brother execution claims, grounds for reversal. argument, he is argue.” Such an prose- effect of the contends that the cumulative Defendant also reversal of the egregious so that it mandates cutor’s misconduct is 139-40, Baker, N.J.Super. See State v. death sentence. argues that response, (App.Div.1998). State 708 A.2d *64 in record. grounded in evidence contained the were the comments “commentpng] merely prosecutor was The claims that the State the interest and bias presentation in gaps about the defense comments, “totally arguably, which are certain witness [sic]”— proper.” questioning was prosecutor’s much of the
We find that mitigating, jury “look at the prosecutor asked the proper. The defense, quality the by the and evaluate presentation entire the prosecutor asked presented____” The that was the information from that was elicited defense jury to consider the evidence cross-examination, The and on rebuttal. witnesses on direct and The gaps in the defense’s case. State questioning revealed State’s credibility of defense calling question the evidence into offered suggest that prosecution to improper for the witnesses. It is not incomplete. presentation was imbalanced the defense’s prosecutor’s comments complaints regarding the Defendant’s prosecutor’s The similarly are without merit. Krych about Carol Krych in the record. Krych grounded were regarding comments worker. as a forensic social direct examination identified herself on cross-examination, in when confronted with documents her On finally writing, capital mitigation own she conceded that she was a specialist. report Witnesses that she referred to her insisted they misquoted, and that contradicted the had been documents theory background presented not defense of defendant’s were jury the defense’s case. The was entitled to know that informa- determining weight give Krych’s testimony. tion in Ms. prosecutor’s questions provided a basis for the to infer Krych presenting picture was biased and was of a defendant accurate, completely sympathetic. that was not It albeit does not defense, out, denigrate points “speak frankly as the State deciding about what is manifest the record.” When how much case, give jury clearly worth to to the defense could consider receiving picture, whether it was a full as interest and bias are 607; Gorrell, always N.J.Super. relevant. N.J.R.E. v. State (citation 142, 149, omitted). (App.Div.1996) 687A.2d 1016 Because record, prosecutor’s comments were based on evidence in the and the reasonable inferences could be drawn from that evidence, Harris, prosecutor properly. supra, acted 156 N.J. at 716A.2d 458.
Lastly, prosecutor’s reference to the fact that Paul Timmendequas changed had his mind and wanted his brother to was, most, die harmless error. The had been shown two tapes of with tapes boys’ interviews Paul. The discussed the history childhood and upon tapes, abuse. Based those argued in any your defense summation that “if there’s doubt in Timmedequas telling mind that Paul the truth about the abuse, you sexual I ask tapes again.” forget watch those “Don’t ” [what] Paul said with all the abuse.... ‘What reason would *65 Paul now to tapes?” have recant what he said on the prosecution emphasized
The change Paul’s of mind to establish presentation background exag- the of defendant’s had been gerated. by prosecutor That is evidenced fact the the launched boys’ into a of immediately review Paul’s version of the childhood pointing changed after out that Paul had his mind. The statement
595
defense, chal-
painted by the
picture
of abuse
contradicted
It
theory
rebutted the defense’s evidence.
lenged
defense
most,
At
the comment
from evidence
the record.
was drawn
harmless,
tape that Paul had
knew from the
since
to die.
changed his mind and wanted defendant
denigrated
prosecutor
the defense
disagree
We
also that
Rose,
In
held
presented.
not
we
pointing out what evidence was
warranted
prosecutorial
misconduct
that the cumulative effect
Rose,
Denigra-
112
Prosecutors must (1991). Moore, 420, 462, 864 122 585 A.2d v. N.J. State Moore, expert “profes was a that a defense comments to the effect defendant,]” duped by the bleeding heart who was indeed sional 461-62, A.2d 864. Comments improper. Id. at were deemed insanity was merit- that the defense “that the defense realized own expressions prosecutor’s improper less” also were overruling conviction on other conclusions. Ibid. While coun denigrate defense prosecutors not grounds, we cautioned Similarly, in feelings. Ibid. based on their own sel or witnesses (1992) III), 557, 622, (Bey we A.2d Bey, 129 State v. N.J. argue that a defense “unprofessional” prosecutor for a found it pick and choose theory going he expert [was] had “a first and however, not, find it to theory did make the work”. We facts to given weight to be it went to the harmful error because be testimony. Ibid. expert’s
596 prosecutor’s in
We are satisfied that the
comments
this case do
prosecutor’s
error. The
not constitute reversible
comments are
Rose,
prejudicial
supra,
less
than those made in
After
the record and
that some
nonetheless,
prosecutor’s
improper,
of the
remarks were
we are
evidence,
fully
weight
particularly
satisfied “that it was the
of the
himself,
damning
statements uttered
that led to
capital
prosecutor’s
this
murder conviction rather than
im-
comments____” Feaster,
proper
63-64,
supra, 156 N.J. at
A .2d 395.
alleged
We conclude that the
misconduct was not “so
Moore,
egregious
deny
supra,
as to
defendant a fair trial.”
(stating
evaluating
N.J. at
YI. Other Trial Evidence A. Age Voir Dire Re: Victim’s
Defendant, appeal, for the first time on claims that the trial court plain committed error and his trial counsel rendered by failing to determine whether of counsel ineffective assistance juror’s adversely impact potential age victim would *67 disagree. lengthy The ability fairly. We to deliberate provided the court and individual voir dire questionnaire the whether enough information to determine counsel with more than jurors automatically to potential age victim’s would cause mitigating to consider the impose penalty death or refuse by the defense. presented factors
1. The Facts orientation, panel court informed each During juror the trial of a seven- involved the murder and sexual assault that the ease Next, attorneys questioned 331 year-old girl. the court and the upon their review of potential jurors lengthy in a voir dire based by person. process each in-depth questionnaire an filled out January April until 21. lasted from jurors designed to weed out written voir dire was The oral and ability impartial. to remain any doubt about their expressed who jury questionnaire asked whether Question number seven of the juror If the answered juror any stepchildren. or had children sex, by inquiring age, eight up followed about yes, question child, and whether the employment status of the education and Question juror. ten asked wheth- prospective child lived with sexes, so, ages, if any grandchildren, and their juror had er the education, they lived with the and whether employment status juror, or Question potential if the juror. nine asked prospective child, so, her, if loss of a had suffered the anyone close how the loss occurred. describe jurors’ knowledge of to the
An section was devoted entire knowledge if or specifically were asked their Megan’s Law. Jurors outgrowth the case would Megan’s Law was an suspicion that Questions impartially. judging the case prevent them from knew, anyone juror, or she whether the through 110 addressed molestation, and whether the abuse or been a victim of child had committing child anyone had ever been accused juror knew who juror if abuse or molestation. The also asked she had any Ques- attended class on or had studied child sexual abuse. through possible tions 128 130 dealt with the admission of victim impact they were asked if could listen to such evidence. Jurors fairly mitigating presented and still consider the evidence evidence by guidelines by forth the defense under the set the court. Question juror possibility how 131 asked felt about the Ques- might disturbing photographs she be shown of the victim. anything if question- tion 132 asked there was not covered juror might ability naire that the felt affect her to be fair and impartial. court, jurors questioned by thirty-four
Of those were ex- indicating they problems being after impartial cused would have specifically because the case involved a child. The court asked seventy-four remaining ninety-seven qualified jurors about *68 abihty impartial, given their to remain that the victim was seven years jurors old. Nine of those on deliberated the case. Defense object juror’s counsel not did the court’s voir dire about the abihty given impartial to remain that the victim was a Nor child. any peremptory challenges did counsel exercise allotted for defendant in selection.
2. The Law
To
a claim
state
for ineffective assistance of counsel
under the Sixth Amendment of the United States Constitution and
I,
10,
Constitution,
paragraph
Jersey
Article
of the New
a defen
dant
representation
must first establish that counsel’s
fell below
Fritz,
objective
an
standard of reasonableness.
v.
State
105 N.J.
42, 67,
(1987), (referencing
Washington,
519A.2d 336
v.
Strickland
668,
2052,
(1984),
466 U.S.
104
674
S.Ct.
80 L.Ed.2d
and United
Cronic,
648,
2039,
States v.
466 U.S.
104 S.Ct.
599
light
of all relevant circum-
performance should be evaluated
689-90,
alleged
occurred.
Id. at
104
at the time the
error
stances
2067-68,
inquiry
The
must include
The
(Martini I),
176, 210,
131 N.J.
a fair trial. State v. Martini
(1993).
case,
capital
probe
In
dire should
A.2d 1208
voir
jurors
prospective jurors to ascertain whether the
the minds of
ability to
any
interfere with their
biases that would
entertain
Erazo,
fairly
impartially.
State v.
126 N.J.
decide the case
(1991).
112, 129,
questions
should deter
A.2d 232
also
prevent the
the circumstances of the crime would
mine whether
juror
considering
mitigating
from
relevant
evidence.
prospective
1208;
I,
211, 619 A.2d
State v.
supra, 131 N.J. at
Martini
(1991)
1, 30-31,
(Biegenwald
Biegenwald, 126
stressed the
any prejudice
the victims as it relates
regarding the status of
mitigating
At
juror’s ability to consider
evidence.
affecting the
*69
probe
refusal to allow defense counsel
issue was the trial court’s
to remain fair
jurors
they would be unable
prospective
on whether
was
months
that one of the victims
six
impartial given
and
reverse,
infant.
refused to
and the other was an
We
pregnant
probing
had been
questioning otherwise
finding that the court’s
jurors
might have been
prospective
who
enough to weed out
451-54,
A.2d 864.
Id. at
by the facts of the case.
biased
Moore,
type
supra,
can be cured “if the voir
Defects
thorough
probing
dire was otherwise so
as to ensure that the
jurors empaneled
‘capacity
had the
to credit
the evidence
(1988)
123, 154,
Bey,
mitigation,’ State v.
112 N.J.
There is no merit to claim defendant’s that counsel did not adequately impact age might delve into the the victim’s on have jurors. extensively questioned Both the court and defense counsel jurors regarding Only the fact the victim was a child. two issue, jurors questioned extensively were not on that Delventhal Nothing jurors’ questions and Livecehi. in either statement raise ability impartial. about their to remain instance, In the first if properly Delventhal was asked he could impact mitigating consider victim evidence as instructed Although the court. He answered that he could. defense counsel up question regarding did not follow and feelings Delventhal his children, juror probed on counsel whether the would consider and, so, mitigating type. evidence about the defendant if what Undoubtedly, strategic go counsel amade decision not to further questions with those because there no from indication Delven- fact, unfriendly thal that he would be to the defense. Delven- attorney. thal a criminal importantly, used to be defense More juror only point Delventhal was the at that who did not know of prior presumably criminal played record. Those facts *70 object a role defense counsel’s decision not to to Delventhal’s qualification juror. aas case,
In Livecchi’s there also was no evidence that she would problem remaining impartial. Although have a the court did not in-depth questions regarding ask Livecchi the same the victim’s age jurors, probed as it had asked the other defense counsel questioned impact issue. Counsel whether the Kankas’ victim overwhelmingly evidence would be emotional for Livecchi. She pressed, “no.” answered When she insisted that she would con- mitigating carefully equally sider the evidence as and as as she family’s impact considered the on statements. Based Livecchi’s answers, oral and written defense counsel and the court had no age reason to believe the victim’s would interfere with Livecchi’s ability impartial. object to remain Defense counsel’s failure to qualification likely strategic Livecchi’s was a decision. jurors adequately questioned
We conclude that the court regarding possible might knowledge bias result from their years posed open-ended court the victim was seven old. The questions juror given on based the answers the had questionnaire. displayed.no ques- Defense counsel reluctance to jurors extensively subject, indicating tion on the that counsel had strategic reasons for the omission in instances when it did not Every juror anything probe further. who said that would indicate facts, panel. light from we find bias was excused those that no error was committed the trial court.
Defendant’s claim that he was denied effective assistance of on counsel also is without merit. Counsel failed to elaborate instance, only questioning regarding court’s the victim one strategic. that that More- there is a clear indication decision over, support no contention that defendant offers evidence (if but for counsel’s deficiencies the Court were to find that there any), proceeding were the result of the would have been different. claims, therefore, rejected. are Defendant’s Investigate Stay to Further Motion B. for Defendant’s *71 Jury County the Hunterdon Challenge the Randomness of Process Pool Selection 1. The Facts 1997, challenged the Hunterdon Coun- defendant April
On not ground on the that it was ty’s jury pool process selection stay in random, He asked for a required by N.J.S.A. 2B:20-1. as hearings investigation and on the proceedings pending further matter. motion, solely on materials relied support
In of his defendant Lamberth, for a psychologist Ph.D. prepared by social John pending capital case of State v. Robert motion filed similar analysis jury pool in statistical of the Dr. Lamberth’s Simon.10 that, County, population of Hunterdon given the Simon revealed jurors from same extraordinary number of were drawn an analysis independent no families. Lamberth offered requested stay so the pool in case. Defendant County’s investigate compliance expert could further defense statutory jury pool for selection under N.J.S.A. guidelines with 2B:20-2, 20-3 and 20-4. The trial court
The trial court denied defendant’s motion. 1:8-5, that, pursuant to Rule lists were made observed 13, 1997, January twenty days parties on before available both days passed One hundred and sixteen had voir dire commenced. Moreover, defendant’s motion offered no indica- since that date. attempted to view the information on tion that defendant had County’s jury procedures, selection as allowed Hunterdon 2B:20-4(e)(2). specu- on a Defendant’s motion was based N.J.S.A. jury in challenging a another case. Because lative certification prima for a had failed to make out a case defendant facie violation, relaxing indulge court concluded that the rules would right argued before this Court on State v. Simon was on as of appeal 29, 1998. September fishing expedition: nothing suggest “There’s before me to jury pool random selection of the upon based electronic means was insufficient, prejudicial, satisfactory.” was not The court motion, ruling good denied the that defendant had to show failed delay filing. cause to excuse the
2. The Law
Capital appeals require special
procedural
attention to
I,
supra,
fairness. Williams
N.J.S.A. *72 ing drawing assignment that the of names and “[b]oth the of [jury] panels public selected names to shall and random.” be provides Section 4e that Assignment jurors, Judge [t]he for the random selection of and their may provide (2) assignment to the of if ... devices, use electronic the panels, by specification programs
the method and
to
method,
used
the
any
procedures
implement
including
programs which are
are available for
utilized,
any computer
public
inspection upon request.
Any party
challenge
jury array
ground
can
on
the
“selected,
jurors
according
were not
drawn or summoned
to law.”
(b).
R. 1:8-3
(Law
469, 482,
N.J.Super.
Long,
v.
204
Div.1985),
challenge
petit
the court held that a defendant must
days
jury
thirty
entering
plea, (reading
within
an initial
R. 1:8-3
materia).
pari
may enlarge
and R. 3:10-2 in
The court
the time
483,
period
good
if
499
264. If
cause is shown. Id.
A.2d
prima
showing
prejudice
defendant makes a
of actual
to his
facie
jury,
right
impartial
to a fair and
the court can relax the time
Butler,
270, 271,
period.
N.J.Super.
v.
State
155
604
525, 530,
Robinson,
N.J.Super.
quate.” v. State Div.1974) (Law prima not made out (holding defendant had grand petit selection ease for non-randomness facie regarding source of figures or information process given that no process presented). were selection investigate ample opportunity has a defendant
Where
reject challenges to the
likely will
jury pooling, courts
improper
McClain, 263
untimely manner.
v.
jury array made in an
State
denied,
496-97,
488,
(App.Div.),
A
623 .2d280
N.J.Super.
certif.
(1993); Robinson,
477,
supra,
N.J.Super. at
Given the
denying
lenges,
trial court did not abuse its discretion
stay.
good
show
for a
Defendant failed to
defendant’s motion
of time and he did not make
entitling him to an extension
cause
given
panel
showing
prejudice.
Defendant was
prima facie
twenty day period. Despite “ample
applicable
list
within
array,
steps to
opportunity”
challenge the
the defense took few
get
attempted to
information re
investigate. Defendant never
selecting
jury,
County used in
its
garding
process
Hunterdon
*73
Although
present
to
2B:20-4e.
he did
pursuant
N.J.S.A.
case,
for the Simon
show
analysis that Lamberth had conducted
name,
many
jury pool had the same last
ing that
members of the
analyze
over time. Nor did Lamberth
did not
the data
Lamberth
short,
in
defen
analyze
process
used
defendant’s ease.
simply
not
speculation.
on
He
did
argument
dant’s
was based
Long,
prima
out a
case for non-randomness.
make
Cf.
facie
supra,
Super,
N.J.
(allowing stay
C. of Defendant’s Claims 1. Defendant’s refusing
Defendant asserts that the trial court in erred suppress argues his confessions. Defendant that the statements satisfy fail to the basic criterion of voluntariness and were not the waiver, product given of a valid his mental limitations. With bedroom, regard to his initial statement in Cifelli’s argues engaging interrogation. that the in custodial officers were Therefore, the officers should have administered Miranda warn- that, ings. although Defendant further asserts he was read his station, rights police at the the second statement made there was by tainted the earlier statement made Cifelli’s bedroom. Ac- cordingly, suppressed those statements must as well. be
Next, defendant contends the statement made when Brian Jenin interrogation suppressed entered the room should be on the ground acting agent as an for the Jenin State. Defen- request speak dant also claims his with Jenin was tantamount request interrogation. to a to end asks court to Defendant suppress subsequent reverse the trial court’s decision not to all “poisonous confessions as fruit” derived from the tainted confes- comment, response “They got you, they sion he made Jenin’s got you, they got you.”
Finally, “totality argu- defendant makes a of the circumstances” ment. He contends that the statements cannot be considered voluntary light long period interroga- time over which the place, questioning, tions took the late hours of the the fact he had little, any, if sleep, and his mental deficiencies. In addition to the defendant, physical deprivations argues suffered he questioning manipulative, nature of the was coercive and and the polygraph use of the test exacerbated that coerciveness.
606 The Facts
2. three-day over a police, to the made statements Defendant’s disappearance, were day of the victim’s period beginning on the At the N.J.R.E. suppression important to the State’s case. under which described the circumstances hearing, state witnesses night of the victim’s made his statements. On defendant O’Dwyer, Kieffer Township detectives disappearance, Hamilton residence, 27 supervisor, Stanley, arrived at defendant’s and their conducting interviews Lee Drive. Patrol officers Barbara Cifelli, offender, Joseph had information that a released sex area signed a consent to Lee Drive. After Cifelli lived at Barbara form, house in which three detectives searched the search defendant, Cifelli, Jenin, mother lived. and Cifelli’s They suspect. a read initially considered Cifelli to be
Police him in his Miranda rights questioned him his bedroom. his receipts an alibi and to corroborate gave Cifelli detectives officers that defendant once had account. He then informed the seven-year-old girl. a molested The detectives testi- was called into the bedroom next.
Jenin Miranda they warnings not Jenin fied that did administer because just police suspect at that time. The were was not considered story. gathering information. Jenin corroborated Cifelli’s then called defendant into the bedroom. Kieffer Detectives time, suspect no more a than testified that at that defendant was Therefore, anyone neighborhood. the detectives did else not administer Miranda warnings. Defendant was not told he room, O’Dwyer to leave the but testified was free questioning was “non-eustodial.” O’Dwyer, appeared very nervous and
According to defendant heavily. perspiring When the detectives defensive and victim, just picture stared at showed defendant day had it. then asked defendant where he been Detectives the last time he had seen the victim. Defendant and when was house with two Megan stopped detectives that his told the washing They while was his boat. friends he outside had a brief *75 girls conversation and the left. prior
Defendant also was asked about his record. He told pushed girl pressed by Kieffer that he had a off a bike. When detectives, defendant admitted that he had her tried sniff poly- if underwear. Defendant was asked he would submit to a that, graph replied past experience, test. Defendant based on machine did not work on him. a.m., approximately if
At 1:45 the detectives asked defendant they question headquarters. agreed, could him further at He but driving permitted insisted on his own car. Defendant was to drive headquarters, “closely himself to followed behind” the detec- report Kieffer tives. wrote his that defendant was asked to headquarters questioning come to for further “[d]ue [his] physical ... from [and] demeanor actions visible the outset.” It questioning police was not until the end of that initial that him suspect. considered a a.m., upon arriving headquarters, O’Dwyer
At 2:30 at read O’Dwyer placed copy rights. defendant his Miranda along. form front defendant so he could read The detectives rights they read his “knew that was defendant because there involved,” something more on defendant’s nervousness and based “physical rights behavior.” Defendant said that he understood his signed and a form to such. Police also read him a waiver indicate it, signed agreeing rights. form. Defendant that he waived his O’Dwyer signature. and Kieffer witnessed his The detectives any expressed questions testified that defendant did not ask and help. appear desire to He was alert and did not to be under the drugs influence of or alcohol. The detectives made no threats or promises sign defendant to the waiver. induce questioning approximately 2:40 a.m.
Detectives resumed at They day he asked defendant about his last time had seen account, the victim. Defendant then was asked to write down this writing which he was left alone to do. Defendant finished basically at 3:50 a.m. The statement was consistent with statement to a search of his then consented Defendant his oral statements. truck. Although a.m. O’Dwyer since 1:15 had been with
Defendant time, O’Dwyer sleep during all not seen him at detective had all that was was alert and understood that defendant submitted attorney any point for an going on. Defendant never asked were made. He questioning. promises No or threats during the favorably if he more told that he would be treated was not search, a.m., completed the after detectives cooperated. At 4:00 headquarters to leave with the under- permitted day polygraph for a test. standing he would return later Kieffer, a.m., O’Dwyer and day, July at about 10:40 The next Cifelli, Stanley Lane and asked Jenin went to Barbara questioning. The headquarters for more defendant to come *76 police agreed go transported to and were vehicles. Cifelli three was questioned separate rooms and defendant and Jenin were polygraph operators, Detectives Puke- placed a room with two poly- McDonough, testified that he filled out a nas and Pukenas form, graph Miranda an authorization to disclose which contained form aloud resulting from the test. Pukenas read the information Pukenas described defendant as explained and it to defendant. awake, calm, that defendant un- and alert. Pukenas maintained non-stipulated polygraph test and could not be derstood this was a signed the form. p.m., at trial. At 12:24 defendant admitted performed background a test on defendant Pukenas first mentally physically if suitable for the determine he was and responded polygraph had a polygraph. Defendant that he taken a He stated that he never had been treated for test before. condition, psychological treat- nervous but he had received some Defendant also stated ment at Avenel between and 1988. “nerves,” tight” “a little from but had no other that he was apparent physical told Pukenas that he had ailments. Defendant day sleep hours of before but had two-and-one-half three as “a slept good “real for an hour.” Defendant described himself “okay.” anything, if little tired but When asked he had eaten bit” hungry. accepted defendant said no and claimed lie was not He a questions Pepsi p.m. response regarding at 12:37 his background, defendant told the detective he had educational dropped grade out 11th and obtained GED. preliminary questioning, explained poly-
After this Pukenas graph test to defendant. Pukenas testified that defendant had no problems understanding and did not hesitate to take the test. previous Pukenas then asked defendant to write his account of the day’s events and left the room. statement, completed defendant his Pukenas read it back
When The two discussed it to make sure defendant had defendant. nothing Although left out. the statement contained a number of mistakes, spelling grammatical the detectives testified that it comprehensible. Nothing explicitly was in the statement was inculpatory.
Pukenas then asked defendant number standard behavioral questions. questions Pukenas these observation testified whole,” related, polygraph, “on rather to were not to the but day,” investigation.” They whole or “overall then took a “the break, during which time used the short bathroom. questions during ask Pukenas then read defendant the he would polygraph they only him that test and advised were questions cooperative ask. Defendant was still he would no hesitation. showed times, concluding p.m. test administered three at 2:25 prior responses.
Defendant’s answers were consistent with his *77 signed polygraph Shortly after 3:00 Defendant then charts. p.m., Pukenas informed defendant that he had failed the test. explained pass that was Pukenas that failure to meant defendant deny in- being completely truthful. Defendant continued to not disappearance. volvement the victim’s p.m. brought at 4:12 and Pukenas Defendant used bathroom pizza p.m. p.m., him soda at 4:39 From 4:50 to 5:20 Detective Borough, from a Schwartz from Middlesex whom defendant knew arrest, defendant. Pukenas asserted prior was alone with during that time “probably” questioning defendant was Schwartz elicit an admission. to McDonough met p.m., 5:30 Pukenas
Beginning at about things didn’t They told him that “certain alone. with defendant a speak if he would like to good in favor.” asked look his When answered, “Sure, Mend, Jenin, bring him in.” The like defendant Jenin, came in to sit with to find while Schwartz detectives went defendant. they defendant McDonough told Jenin believed
Pukenas and disappearance. Pukenas something to do with the victim’s had defendant, speak telling him that if would like to asked Jenin he speak to him. Pukenas testified that Jenin’s wanted to defendant idea, McDonough’s Pukenas’ or talking to defendant was either defendant, say not know what Jenin would adding that he did say. him what to told any of the detectives tell Jenin nor did “probably guilty.” Pukenas he believed defendant p.m. at 6:29 brought into the room with defendant Jenin was Pukenas, the conversation with defen- According to Jenin initiated dant, immediately saying would “need a friend on the said, they “they got you, they got you, got outside.” He then his first admission. Defen- you.” point, At that defendant made Jenin, County Park.” Pukenas testi- dant told Mercer “[s]he’s said, “Tell ... [me] fied that neither Jenin nor the detectives body where the is.” possibility Megan if
Pukenas asked defendant there was answered, “[n]o, put she’s dead. I was still alive. Defendant bag agreed accompany Defendant then plastic over her head.” not park. to the Pukenas testified that defendant was officers car, any questions nor was he threatened. Defendant asked park, that he had able to take the victim to the volunteered been go return home in 15 minutes. to a WaWa and directly officers to the victim’s park,
At the defendant led the body. way park, from the detectives In the car on the back *78 gave asked defendant what had occurred. Defendant then his day Again, on the of the incident. Pukenas account the events they no threats and used no coercion. testified that made headquarters, Back at Pukenas asked defendant to write a day statement about the events that occurred on the the victim disappeared. warnings not administer Miranda The detective did appeared at that time. Pukenas testified that defendant still alert, awake, and not confused. Defendant wrote out his state- time, At to ment. the same Pukenas went the detective bureau report detailing and wrote a defendant’s oral statements in the car, sexually touching Megan, car. In the to admitted get away, body killing carrying her when she tried to her outside box, toy bringing park. in a to house and her Pukenas sufficiently appeared give testified that defendant awake to attorney formal statement. Defendant never asked for an or if he stop talking. complained police could Defendant never about how custody. him the entire time he was in treated statement, reading O’Dwyer written After went speak given opportunity with defendant. Defendant use the restroom and smoke. He was asked if he wanted food. accepted only O’Dwyer a soda. testified that defendant was He alert, difficulty understanding questions seemed to have no him, posed answering. O’Dwyer and exhibited no hesitation in appeared observed that defendant less nervous than before— during almost relieved. Defendant was offered breaks the session but did not ask to eat or use the bathroom. O’Dwyer rights. O’Dwyer p.m.,
At 8:25 read defendant his questions; testified that defendant had no he felt that defendant voluntarily “knowingly rights agreed waived his typed speak____” responses oral were then into the Defendant’s computer. printed, O’Dwyer
After the final statement was showed it to defendant, rights again, him his and asked if he understood read you reading, the line on the form “do them. Defendant initialed give wish to a statement at this The statement was time[]” *79 was asked to read p.m. at 9:55 Defendant marked “concluded” initialed any changes wanted. Defendant make he statement and changes asking no making no and page, of each the bottom on a Shortly midnight, defendant was arrested after questions. in a placed was then by Kieffer. Defendant complaint sworn out charges. fingerprinted was at 1:30 presented with He cell and clippings at a.m., fingernail to take asked for his consent and was a.m. 4:00 day, consented to and following defendant p.m.
At 4:00 on the Askins, Defen- by Dr. Haskell a forensic dentist. examined was right photographed. This his teeth and hand agreed dant to have minutes, that during which time Kieffer observed took about 45-60 awake, cooperative. was alert and defendant yet This p.m. gave another statement. At 4:55 defendant by discovery Megan’s of evidence at prompted statement was previous accounts. Kieffer that contradicted defendant’s autopsy told him to read it to himself. rights defendant a form and handed attention, according appeared paying awake and Defendant be that defendant understood to the detective. Kieffer was convinced voluntarily. rights them his and waived autopsy findings, defendant Kieffer told defendant of the After entirely day but had not been truthful the before stated that he thirty for questioned The detectives defendant that he would be. incident, gave complete account of the minutes. Defendant attempting to have sexual admitting hitting the victim and intercourse with her. signed a rights. his Defendant
Kieffer then re-read defendant another formal statement. He asked waiver form and made printed, questions. no the statement was officers When a few other page. it and initialed each He then made read over stated, telling “I feel better after assertions about the incident and happened.” you of the truth about what the rest hearing, trial court held that all of suppression At the First, found were admissible. the court defendant’s statements rights. to waive his constitutional competent that defendant GED, write, and all could read and “understood He had a his him.” actions also demonstrated occurred about Defendant’s ability police. and to deal with cleverness home, the court regard to the at defendant’s questioning With setting questioning was brief that the was not custodial. held non-coercive; have encounter defendant could ended the therefore, required and warnings, not any point. Miranda were failure to Miran- statements were not tainted subsequent defendant. dize statements, court found regard to formal
With volun- warnings administered and defendant adequate were court rights. The tarily, knowingly intelligently waived his There police “credible” and believable. found the witnesses be *80 intimidated, threatened, deceived police evidence that the was no also The court defendant or overbore defendant’s will. or coerced suppressed be rejected the claim that the statements should delay and sleep, arraignment, of defendant’s lack of because penalty charges. Defendant’s warning potential of death lack of entirety. was denied its motion The Law
3.
interrogation
during
by police
obtained
custodial
Confessions
of
advised
from
unless the defendant has been
are barred
evidence
444,
436,
Arizona,
rights. Miranda v.
384 U.S.
his constitutional
694,
(1966);
Cooper,
1602, 1612,
v.
16
707
State
L.Ed.2d
86 S.Ct.
(1997);
I,
326, 354,
N.J. at
supra,
Chew
150
In order to survive was that the confession beyond a doubt prove must reasonable Galloway, official voluntary product and not the misconduct. 654, at the The court must look at A.2d 735. supra, 133 N.J. 628 614
totality
circumstances,
including the characteristics of the
defendant and the
interrogation. Cooper,
circumstances of the
356,
306;
supra, 151
at
Galloway, supra,
N.J.
700A.2d
The Miranda triggered by is “custodial in i.e., terrogation,” questioning by law enforcement officers after a suspect deprived has been of freedom significant of action in a Miranda, way. supra, 384 at U.S. S.Ct. 706; Smith,
L.Ed.2d at
1, 8-9,
State v.
N.J.Super.
615 suspect, rights provided by or he because she is a Miranda Pierson, 62, 67, N.J.Super. implicated. v. 223 537 are not State (App.Div.1988). A .2d1340 case, agree
In this with court’s conclusion that we the trial not made in Cifelli’s room did the oral statements defendant police interrogation involve custodial and were admissible. The questioned neighbors defendant and other connection with early stages missing-child investigation. ques of a Because station, house, tioning place police not in a took in defendant’s inherently intimidating. The questioning was not location not lengthy was not duration and defendant was interview any permitted fact was to way. restrained The that defendant finding police supports own car that drive his to the station Moreover, fact was leave. that defendant free to questioning should emerge both Jenin and Cifelli from witnessed he to is no have indicated was free leave. There evidence point, sought to suspect at that detectives considered defendant him, any also pressured Accordingly, him in fashion. we detain or not, not, and did “taint” initial statements could conclude pursuant waiver. subsequent made to a valid Miranda statements Agreement to See 5. Jenin Defendant’s request asserts that his see Jenin Defendant right an of his to remain tantamount invocation silent interrogation, request however questioning. all A to end end by the ambiguous, scrupulously must honored authorities. be 326, 96, 103-04, 321, 46 Mosley, v. 423 96 S.Ct. Michigan U.S. 45, 313, (1975); 64, Bey, v. 112 N.J. 548A.2d 321-22 State L.Ed.2d 407, (1988) 415, I); A.2d (Bey Harvey, v. 121 N.J. 581 846 State denied, I), (1990)(Harvey 111 cert. 499 U.S. S.Ct. (1991). 113 L. Ed.2d speak his Harvey, supra, requested to with the defendant of their A.2d 483. At the conclusion
father. Id. hours, made a over three the defendant meeting, which lasted police issue police. did not new Miranda statement Ibid. *82 616
warnings until
Immediately
after the statement was recorded.
read,
rights
after his
were
requested
attorney.
the defendant
an
Ibid. The Court
request
speak
held that the defendant’s
with
his father
request
constituted a
interrogation.
terminate the
419-20,
Id. at
This case is different. given Defendant had been opportuni- an ty rights to invoke his prior several times seeing Jenin. He never once meeting invoked them. The with Jenin was not private, it presence occurred of officers. Defendant never requested to be alone with meeting (only Jenin. The was brief minutes), few because it very took defendant little time to confess. Jenin was not called into the room on defendant’s initiative. The meeting arranged by was the detectives. merely Defendant re- sponded in the affirmative suggestion to the officers’ that he talk short, to Jenin. we find no evidence that any defendant had intention of invoking his right constitutional to silence or to terminate interrogation by agreeing to speak with Jenin.
We also see little merit in defendant’s assertion that
Jenin
acting
police
as a
agent, and therefore the failure to
warnings prior
readminister Miranda
to Jenin’s involvement vio
right
lated defendant’s
to counsel. There is no evidence that
acting
government
Jenin was
as a
agent.
police
did not direct
any
Jenin to elicit
information from defendant.
Jenin’s outburst
response
and defendant’s
Moreover,
were unexpected.
the rule
regarding
government
the use of
agents to elicit incriminating
applies only
statements
when a defendant’s Sixth Amendment
right
to counsel has
triggered by
been
indictment and he is
represented by
Moulton,
counsel.
159, 169-74,
Maine v.
474 U.S.
477, 483-86,
106
(1985);
S.Ct.
88 L.Ed.2d
491-95
Massiah v.
States,
201, 204-06,
United
377 U.S.
1202-03,
84 S.Ct.
12
(1964).
L.Ed.2d 246
Bey,
451, 466,
State v.
N.J.Super.
*83
denied,
19,
130
Defendant circumstances questioned period sleep— of 44 with little was hours —over involuntary because his will was over rendered his statements detectives. borne the began evening shortly questioning
The on the June following 4:00 midnight, before and continued until a.m. the morn- only after ing. headquarters back at at 10:45 a.m. Defendant was sleep. engaged lengthy period He in a few hours of was lasting p.m. until when he confessed. Defendant questioning, 6:25 park body, the directly taken to the to locate victim’s returned was afterwards, questioned in custody immediately and the car on cell, way placed then in a where he was the back. Defendant was at 3:00 questioning p.m. times. The resumed disturbed several day. following the
Although by the when a repeated questioning authorities defen- intimating sleep, has with dant had little combined statements police not and had evidence being the defendant was truthful him, circumstances, could against in certain render involuntary, support in this not record case does statements First, was questioning not “around clock” that conclusion. go During Defendant allowed to home. or continuous. station, many him at the the officers offered periods he was Moreover, officers that he defendant never indicated to breaks. demeanor, appearance, hungry to His was too tired or continue. alert responses indicated the officers that he was and control. indicating ample that defendant’s confes-
There is also evidence will. officers adminis- product were his own free sions warnings and he waived several times tered Miranda defendant requested them each time. He never counsel or asked to termi- nate the police interviews. He sat with and went over his statements with them. any corrections, He was allowed to make but made none. The officers never threatened defendant or physically cooperate fact, coerced him to or confess. In repeatedly stated his desire to cooperate finding the victim. In short, there is no police evidence that used coercive tactics obtaining any of the confessions. any
Nor is there indicating evidence that defendant was so mentally incapable deficient as to be of comprehending his consti- warnings. tutional Defendant high went to through school grade eleventh testified, obtained a GED. No one and defen- *84 evidence, presented dant no support to his claim that he was incapable understanding police warnings. We therefore agree with the trial court that defendant competent was to waive his rights constitutional
Based on totality circumstances, we find that defen- dant rights understood his and intelligently, knowingly and volun- tarily rights waived those over again. and over The record reveals a defendant who was responsive alert and and who con- fessed his own Accordingly, free will. defendant’s statements properly were admitted into evidence.
D. The Exclusion Jenin’s Statement Defendant contends that the trial court improperly excluded a statement police by made to defendant’s housemate Brian Jenin. Defendant contends the against statement penal was Jenin’s inter- strongly est that it indicated that Jenin knew of the victim’s death before defendant confessed to the argues crime. Defendant that the exclusion violated his Eighth Fourteenth and Amendment rights under Constitution, the United States and his correspond- ing rights Constitution, under the Jersey New necessitating rever- sal of his conviction.
1. The Facts 29, 1994, police a formal statement to the July gave Jenin On day disappear- on the the victim’s regarding his whereabouts July 30. police an to on gave informal statement ance. Jenin statement, brought into Immediately following Jenin was that speak being questioned where was conference room defendant two, exchange Following a brief between with defendant. body was police where the victim’s confessed and told defendant located. later, 3,1994, formal days Jenin made a second August four
On statement, a conver- In Jenin recounted police. statement July 29, prior to i.e. before Jenin and defendant had sation he spoke police: to the (sic) just girls’ “The was. He looked at me and said him where the body
I asked (sic) girls’ the Park.” August at trial sought to 3 statement admit Jenin’s Defendant argued testimony. trial Defendant impeach Detective Pukenas’ also account and with Pukenas’ statement conflicted Jenin’s pre-trial penal interest. rebuttal at against Jenin’s brother-in-law, presented testimony by hearing, Cifelli’s the State going him Sandusky, who that Jenin told about Gregory stated that Jenin police Sandusky at the testified defendant station. see over,” “Jesse, confessed. it’s all told him he said conceding as state- Although it admitted Jenin’s statement had court hearing, the suppression at the against penal interest ment Jenin’s testimony was and that that Pukenas’s credible concluded untrustworthy. The trial was unreliable formal statement *85 formal request to admit Jenin’s second rejected defendant’s court statement into evidence. trial, upon entering the conference
At Pukenas testified they 3, stated, got you, they got you, “They August Jenin room on he would Jenin told defendant got you.” Pukenas stated that friend. be that on the and Jenin would a friend outside need cross, that Jenin Pukenas denied then confessed. On Defendant defendant, body The court is.” “Tell him where said to 620
instructed the testimony hearsay this and could be only considered purpose. for a limited The statement was offered “so that there would be some context in [their] evaluation of all time____” the facts and circumstances that existed at the It was not substantive evidence.
2. The Law
A
right
defendant has the
“advance
his defense
any
may
evidence which
rationally
guilt
tend to refute his
or
buttress his
charge
innocence
Garfole,
made.” State v.
76
445, 453,
(1978).
N.J.
Loftin guilt not linking admissible third-party unless there is evidence third party crime) ]. Whether a trial court abused its discretion in excluding evidence third-party guilt involves an extremely inquiry. fact sensitive I, supra, 146 N.J. at 680A.2d 677. Loftin
The trial court was within its discretion in excluding statement, Jenin’s given defendant’s any failure to submit actual linking evidence Jenin to the crime itself. Nothing in Jenin’s against statement was penal, Jenin’s proprietary social or interest. “subject It did not to civil liability.” [him] or criminal See
621 803(c)(25).11 place at the did not himself scene He N.J.R.E. crime, any part him in of the crime. Defen- implicate nor did it alleged culpability attempt a case Jenin’s to create around dant’s Therefore, adequate we foundation the evidence. is without correctly statement concluded that Jenin’s find that the trial court was not admissible. Charge Accomplice Liability
E.
charge
to
the
trial
refusal
asserts that the
court’s
Defendant
charge
accomplice liability
right
to a fair
jury on
violated his
eight
to the United States
the
and fourteenth amendments
under
defendant asserts
Jersey
Specifically,
New
Constitutions.
and
evidence,
unwilling-
the authorities’
gaps
physical
in the
Cifelli,
fact
regarding
and the
follow-up
on leads
Jenin
ness
in the
at the same time as
were
house
that Jenin
Cifelli
liability charge.
enough
support
accomplice
an
victim are
context,
liability
charge
accomplice
In
on
capital
Chew,
life and death.
can mean the difference between
often
charging
for
150 N.J.
A statement which was interest, or tended to so far declarant’s or social pecuniary, proprietary, subject to render invalid declarant’s or criminal or declarant to civil liability, against a reasonable declarant's another, position claim person be true. believed it to the statement unless person would not have made *87 or Cifelli were involved in the murder. Defendant’s own state- inculpated only DNA, ments fiber, himself. The and bite-mark analyses only short, linked defendant to the crime. defendant relying was on speculation mere rather than the facts of the case support request. his Although recognize we accomplice standard for an minimal, liability charge is defendant fails to meet even that low threshold. There was an overwhelming amount of evidence against defendant implicating and none anyone else. Defendant repeatedly crime; confessed to the those confessions mentioned no participants. other The forensic evidence unequivocally also pointed to defendant. Defendant offered no alibi. Cifelli and Jenin’s by alibis were independent corroborated evidence. Given else, dearth of implicating anyone evidence we find that the trial give court’s refusal to accomplice an liability charge was correct.
F. Admission Bite-Mark Evidence of The State’s forensic odontologist, Askin, Dr. Haskell testified that the wound right was, to defendant’s hand “to a reasonable certainty,” medical by inflicted the victim. Defendant asserts that admitting testimony this plain constituted error due to the scienti- unreliability fic analysis. bite mark He claims that the admis- sion of such evidence violated his Eighth Fourteenth and Amend- rights ment under the Constitution, United States as well as his corresponding rights (Art. Jersey under the I, New Constitution ¶ 10), and necessitates reversal or hearing remand for a regarding the evidence’s admissibility, pursuant N.J.R.E. 104. Finally, argues that counsel’s request failure to hearing challenge admissibility of the evidence or to voir dire regarding evidence, witness amounted to ineffective assistance of counsel and mandates reversal.
1. The Facts Dr. Askin is by board certified the American Board of Forensic Odontology. trial, At the time of he performed had dozens of bite- expert had as an witness in four comparisons qualified mark and Askin asked the Chief Medical previous trials. Dr. had been County on defen- to examine the bite-mark Examiner Mercer hand if the wound was consistent with dant’s to determine was, If it Askin to evaluate the teeth human bite-mark. Dr. comparison. for a jaws preparation of the victim bite-mark this, jaws. From he Askin the victim’s teeth and Dr. examined unique He then removed the lower noted several characteristics. jaw. also jaw photographed upper both the and lower He Next, Askin went Hamilton made casts the victim’s teeth. Township Headquarters and examined the mark on defen- Police hand. also examined defendant’s mouth and teeth. dant’s He *88 office, the used models of victim’s Upon returning to his Askin the compared those marks to the teeth to make “test bites.” He hand. marks on defendant’s established, to a that his examination reasonable
Askin testified (1) certainty, injury on that: the degree medical (2) bite; given positioning the by a human hand was inflicted (3) teeth, self-inflicted; given open, the was not the the bite wound, red, appeared have inflamed the bite-mark nature angula- recently. positioning on the and the been inflicted Based teeth, the concluded that bite-mark tion of the Askin further object to by did not Asian’s inflicted the victim. Defendant testimony regarding procedures findings. his or
2. The Law
N.J.R.E. 702 provides: knowledge fact to assist the tiler of or other will scientific, technical, specialized If as an a fact in a witness issue, qualified evidence or determine understand training, knowledge, or thereto in education skill, may testify experience, expert form of an or otherwise. opinion (1997) (Harvey 117, 169, Harvey, v. 151 N.J. 699 596 In State A.2d Rule II), interpreted following: 702 to mean we (1) subject is the ken of must matter that beyond the intended concern testimony (2) subject juror; average at a the art must be state of testimony 624 (3) such that an could expert’s testimony be sufficiently reliable; the witness
must have sufficient
expertise
intended
explain
testimony.
[Id, at
(citing
State v.
699 A.2d
97 N.J.
169,
596
Kelly,
178, 208,
Judicial
from other
establish that bite-mark
analysis
gained general
has
acceptance and therefore is reliable.
Harvey, supra,
170,
151
N.J.
699
(stating
A.2d 596
test for
general acceptance).
thirty
Over
considering
states
such evidence
have found it
rejected
admissible and no state has
bite-mark
evidence as
State,
unreliable.
274,
Howard v.
701 So.2d
292-93
(Miss.1997)(Smith,
(citations
J., dissenting)
omitted); Common-
Cifizzari,
560,
wealth v.
397
(Ma.1986);
Mass.
Even if defendant were correct and the bite-mark evi dence was admitted improperly, any error was harmless. Detec Stanley tive testified that defendant admitted being by bitten the conjunction victim. In with staggering the amount and nature of against defendant, evidence possibility there is no that admit ting this produced unjust evidence an result. Mitigating Factors
G. Defendant’s 1. The Facts not that it would the trial court held penalty phase,
Prior to the “catch-all” miti- proposed of defendant’s following five submit (1) in not act alone did jury: defendant factors to the gating (2) Kanka; conduct of defendant Megan of causing the death persons or other by person substantially influenced another (3) defendant; offered defendant than intellectually mature more (4) sentence; will defendant a life exchange in for guilty plead virtually it is future since young girls danger to not be a (5) jail; of his life the rest spend that he will certain 2C:11- objections to N.J.S.A. any post ex waived facto to life (“Joan’s Law”), would be sentenced 3(b)(3) ensuring that he sentence. jury a non-death if the returned parole without mitigating factors proposed that those concluded trial court The mitigating factors. not valid support or were no evidential had 2. The Law 2C:ll-3c(5) that: provides
N.J.S.A. court are: or the mitigating be found factors which may The * * * * or (h) character or record relevant to the factor which is other Any circumstances offense. added.] [Emphasis 2C:ll-3c(2)(b) provides: N.J.S.A. governing regard the admission rules to the without offer, may
The defendant mitigating any relevant reliable evidence trials, criminal evidence at factors. added.] [Emphasis need 2C:ll-3c(2)(a) a defendant provides that further N.J.S.A. bring factor exists mitigating that a only some evidence produce to the regard with not have burden he “shall play and that it into capital case mitigating factor.” of a establishment defen- “any aspect of a considering precluded from not be must *90 626 any
dant’s
or
character
record and
of the circumstances of the
offense that
proffers
the defendant
aas basis for a sentence less
death,”
2C:11-3c(5)(h).
than
pursuant to
Loftin,
N.J.S.A.
v.
State
(1996)
295, 368,
I)
146 N.J.
(Loftin
Although the “catch-all”
interpreted
factor has been
broadly
I,
Jersey,
368,
supra,
New
3.
The trial properly court proposed refused to submit the mitigating jury. factors to the Defendant offered no support that his participated roommates responsible or were for the crime. Moreover, nothing in supports the records the notion that defen unduly dant was by anyone influenced Jenin or else. In the absence of facts, reliable establishing evidence those the trial court did not abuse its in refusing discretion to submit those mitigating jury. factors to the
Similarly, the fact that plead guilty defendant offered to exchange for a life sentence also properly rejected by court. Defendant offered no establishing evidence that the offer *91 character or the circum- plead guilty related to defendant’s to importantly, simply no More there was stances offense. a ever made. The defense was plea that offer was evidence attorney-client present to evidence unwilling privilege to waive exchange for plead guilty to a non-death that defendant offered sentence, The stipulate would not to that fact. the State Krych her he testify that defendant told defense offered to have subject that willing plead guilty to to certain crimes would was Krych knowledge had no a life sentence. Because him to State, testimony an offer her actually made defendant relevant, had no have been irrelevant. Because defendant would mitigating of that support evidence to submission reliable jury, proper. court’s to the the trial decision factor jail, life spend fact his would that defendant would continuing for not be a ineligible parole, and therefore would be jury’s from the danger young girls, properly also was excluded IV, 49, 126 594 A.2d Biegenwald supra, In N.J. consideration. life 172, serving is that the fact that a defendant we concluded itself, not, by eligible parole is and will never be for sentence Morton, Moreover, v. 155 N.J. mitigating factor. State (1998), we held it was error to allow A.2d 228 715 mitigation. parole ineligibility as to submit evidence defendant Ibid. not mitigating not a factor. It does ineligibility is Parole the crime. or the circumstances of relate to defendant’s character which merely passage of time over It constitutes the Nelson, 487, 504, 281 715 A.2d control. v. 155 N.J. has no State — (1998) U.S. —, 890, 142 67 119 L.Ed.2d cert. den. S.Ct. (1999) they juries (holding that should be told that USLW aggrava- as an alternative sentence are not to consider defendant’s 404-05, factor); Cooper, supra, 151 N.J. at ting mitigating or factor, as it mitigating ineligibility not (finding parole A.2d 306 defen- “the more crimes a incongruous lead to result that would committed, be mitigating he or she would more evidence dant submit”). able
The fact that defendant would
continuing danger
not be a
girls
to little
mitigating
also is not
argument
evidence. That
is
premise
based on the
that defendant will be incarcerated for life
and will have no contact with children.
repeatedly
This court has
rejected the notion
length
potential
that the
of a defendant’s
non-
mitigating
death sentence is a
Cooper, supra,
factor.
H. Krych’s Report to Admit Into Evidence Refusal During penalty phase, the sought to introduce into report prepared by evidence a Krych, Carol the forensic social worker retained investigate the defense to defendant’s back- ground for mitigation purposes. Krych compiled approximately pages of documentation and notes pertaining to defendant’s history, childhood and social based on family interviews with members, teachers, friends, psychologists and social workers. findings (the Her were 32-page Report summarized a “Re- port”).
During examination, direct Krych testified to the interviews she conducted, had using Report guide. the as a The defense intro- duced into fifty-seven exhibits, evidence including defendant’s arrest and conviction records and father’s defendant’s school cross-examination, contradictory produced the State records. On into relia- question that called the and other evidence documents testimony. Report Krych’s and of bility of the evidence, the arguing the into that Report moved Defendant Report and assess its allowed to examine the jury should be Kryeh’s it credi- argued that was reliability for itself. The State Moreover, that was issue. bility, Report, not that the at report report police a argued, the the was no different than State into when the ordinarily would not admitted evidence be subject and is to cross- recording present is trial officer testify Krych opportunity had the before examination. Because Report unnecessary. argued that her was jury, the the State finding probative no Report, court it had The trial excluded Krych about its contents and some had testified force because noted had The court she interviewed also testified. witnesses Report for had been forming exhibits the basis that the 57 jury as Those exhibits would serve to the evidence. submitted Moreover, agreed the trial court Report. as the purpose same police police report. Since Krych’s Report similar to ordinarily into evi- not investigative report is submitted officer’s testifies, report not be Krych’s also should the officer dence when jury. Based Report confusing the risk of submitted. The ran and, factors, report to be cumulative on court found those hence, unnecessary evidence. deliberations, a.m., jury sent the day of at 9:49 its second
On *93 Kryeh’s 32- stating, to note are unable locate Carol “[W]e court a the provide copy.” The informed Please court page report. required for their consideration. jury they had all the documents request Report the his point, At that defendant reiterated jury, especially into and submitted the be admitted evidence the it. added that jury requesting was now Defendant since the itself, mitigating factors by probative the catch-all Report, deliberating. the basis It formed on the would be also which Podboy. Dr. by mitigation for made defense witness conclusions allowing jurors save time Submitting Report the also would 630 important Krych’s
them to find the investigation details of without having go through pages 450 of exhibits.
Interpreting jury’s the note as an indication that the erroneously they supposed believed were Report, to have the request Report accord, rather than a for jury’s of the own court request. refused defendant’s simply The court did not submitting report believe that jury’s would ability increase the reliability stated, determine the “Why issues. The court should report go them, before but no other written documentation which challenges report?” counters or
1. The Law
2C:ll-3(c)(2)(b)
N.J.S.A.
provides, in
part:
relevant
regard
governing
without
may offer,
to the rules
the admission of
evidence at criminal
mitigating
trials,
reliable evidence relevant
any
mitigation
factors.
If the defendant
evidence in
produces
which would not be
governing
admissible under the rules
admission of evidence at criminal
trials,
regal’d
State
governing
rebut that evidence
may
without
to the rules
the admission
of evidence at criminal trials.
We have held that when
any
there is
doubt about
admissibility
evidence,
mitigating
that doubt should be resolved
III,
in the
Bey
supra,
587,
defendant’s favor.
129 N.J. at
610A.2d
814;
Savage
594, 638,
State v.
(1990).
120 N.J.
Whether the trial court abused its discretion in ruling Report that the was not admissible merely because it was cumula- *94 on jury a close call. Based confuse the is five evidence and would miti- governing admissibility the this tolerant standard Court’s evidence, Report, the fact jury’s inquiry the and gating the about Podboy’s expert Dr. Report furnished the factual for that the basis have for the testimony, the would been we believe better result Nonetheless, the trial court’s trial court to admit the evidence. Report into was harmless error. to admit the evidence refusal only “prejudice” defendant cites is that the unanimous- c(5)(h), mitigating eight rejected, factor factors ly under catch-all twenty-four. eight Factor stated: and childhood and were characterized by exposure Jesse adolescence Timmendequas’ home, of the abuse, substance violence, activity, instability domestic criminal neglect, was and and sexual abuse. His life emotional and severe physical physical models of normal behavior His did not serve as role void of any normalcy. parents and Also, extremely poor treated him was family primarily and terribly. during [Defendant’s the time assistance, period existed on public especially father] was in the home. be eight found factor Although not members all 25(a): following they unanimously agreed factor present, on childhood and adolescence were characterized by exposure Jesse Timmendequas’ home, abuse, criminal substance violence, activity, instability domestic neglect, and His and sexual abuse. emotional possible physical physical him did not as role models normal behavior treated poorly. serve parents and received assistance. public was Also, family poor 25(a) identical, except the sen- eight for Factor and Factor are any normalcy.” The minimal difference “His life void of tence changed not have these catch-all factors could between two phase. penalty result Factor stated: being as retarded with emotional prob- and classified mentally evaluated
Despite child none of the study team, professionals provided lems school’s public counseling psychological for Jesse or evaluation services such as further follow-up Timmendequas. did not twice the fact that defendant Kryeh specifically testified Thus, jurors had the counseling in school. follow-up receive Report not find 24—the would necessary to factor information trial As to factor supplemented that information. have *95 concluding court was correct in merely that the evidence would have been cumulative. emphasize
We that this is not a jury case where the did not have the relevant evidence before it. The 450 documents that report placed formed the basis for the were into evidence for the jury Kryeh to read. days testified for three findings about the of investigation. her essentially Defendant alleges that the evidence presented could have been in an easier jury manner for the Nevertheless, review. no jury. evidence was concealed from the We, therefore, conclude that any defendant cannot prejudice show resulting from the Report decision not to admit the into evidence. if error, Even the failure to Report admit the it constituted harmless error jury since the had prior the information to its deliberations. Victim-Impact Evidence
I.
Defendant, for the appeal, first time on asserts that the trial court’s victim-impact instructions on testimony did not com- port Muhammad, procedure with the State v. supra, outlined N.J. 678 A.2d for weighing aggravating and mitigating 2C:ll-3c(6) (5)(h). factors under N.J.S.A. and trial jurors court instructed as follows: juroi- (h) mitigating [I]f as a you have not found to mitigating be factor or present meaning factors in addition to those if listed, haven’t you found as to affirmatively through factors number 3 if no give one found of any those, then must not you regarding any consideration this evidence the victim’s character or the of impact the murder on survivors. And that is so, because it be used in only may terms of
balancing assessing weight or in given terms of the to be to the evidence concerning the defendant’s character or the circumstances the offense. complains Defendant now the above instruction did not clearly jurors they inform could victim-impact consider evidence only they c(5)(h). if first mitigating found factor Defendant argues that the jurors instruction confused suggested they could impact consider victim in determining evidence the existence specific of a mitigating factor. Defendant further asserts that the penalty verdict jury. sheet misled Finally, defendant contends that neither the court nor the verdict apprised jurors sheet impact to lessen required use the victim evidence they not were c(5)(h) any disagree. weight mitigating factor. We Muhammad, supra, proper use explained The Court 2C:ll-3c(6), evidence, the “Vic- victim-impact pursuant N.J.S.A. Impact tim Statute”: of his that if evidence statute the defendant presents
The victim impact
provides
5(h),
evidence
record
to section
the State may present
character or
pursuant
background
of the murder on
and of the impact
murder victim’s character
jury that
court to
then directs the trial
inform
victim’s survivors. That statute
aggravating
jury
one
factor beyond
finds that the State has
at least
proven
if the
mitigating
then
factor,
catch-all
doubt
finds evidence of
reasonable
and the
the State
victim
evidence
impact
presented by
consider the
may
give
determining
weight to
catch-all factor.
appropriate
*96
164.]
[
When the court’s whole, instruction is reviewed as a it is clear jury that the understood how to utilize the victim-impact evidence. Moreover, there is no jury evidence that members used victim- impact incorrectly evidence in their deliberations. In the context record, of the entire we have no doubt that the understood properly applied such evidence. Jury J. Instruction on Parole Ineligibility Defendant asserts for the first time on appeal that the trial improperly court instructed the not to consider the fact that defendant never eligible would be parole for in determining the *97 appropriate penalty. Defendant contends the instruction misled jury the believing into it should not consequences consider the of its in determining sentence appropriate the penalty. Therefore, argues, he the instruction violated his Fourteenth Amendment right process, to due his Sixth right trial, Amendment to a fair his Eighth right Amendment to be free from cruel and unusual punishment, and his corresponding rights under Jersey the New Constitution. 2C:ll-3b(3)
N.J.S.A. mandates a sentence of imprisonment life without possibility the parole of for defendants convicted of mur- Although sexual the dering a child in the course of a attack. case, in after date of the offenses this provision passed the post challenges the law. After all ex to defendant waived facto discussion, jury agreed the that the should trial court and counsel possible face. The court the sentences defendant would be told following jury by administering the relayed the information the instruction: sentencing the are know the considerations under law. This entitled to
Now, you eligible knowledge, for should that the will never be parole, defendant particularly regarding of a sentence on 1, influence Count your appropriateness not decision knowing charge. based or murder Your decision must be only upon purposeful aggravating mitigating in factors the evidence this by penalty presented phase. 1. The Law continuously importance of the
We
have stressed the
jury
engage
throughout
must
balancing process that
members
not as
“fact-
phase.
process
This
has been defined
a
penalty
62,
II,
mission,
524 A.2d
Biegenwald
supra, 106 N.J. at
finding”
473,
Moore,
A.2d
130,
supra, 122N.J. at
game,”
or a “numbers
864,
“judgmental
jury,
based
rather as a
determination
but
values,
live
conflicting
defendant should
or die.”
whether
on
II,
To conduct
supra, 106
at
N.J.S.A. 2C:11-3f jury sentencing jury’s inform the trial court shall deliberations, Prior to the b. of this section on be subsection the sentences which may imposed pursuant if not to death. is sentenced the defendant Ramseur, we stated: supra, 106 N.J. at A.2d on the belief that system capital punishment depends The entire guided representing exercise its will community the conscience responsibly deciding from who shall To hide who shall live and die. discretion sentencing permitting range on its decision be based full of its thus options, *98 636 goals
uninformed and
inaccurate
is to mock
possibly
speculation,
rationality
jurisprudence.
and consistency
modem death
required by
penalty
[Id,
188.]
524A.2d
311,
To secure this
guarantee,
constitutional
previously
we
have held
that
the trial
jury
court must
instruct
sentencing
on the
options
non-capital
available on the
counts
cases
in
where the
is to be sentenced contemporaneously
capital
for both
I,
non-capital
supra,
313,
convictions. Martini
[Nelson, 281.] N.J. at supra, 505, A.2d *99 yet issued at had not been Although the Nelson decision trial, complied the trial court’s instruction the time of defendant’s informing the After precisely. with Nelson’s dictates jurors trial court instructed ineligibility, the parole or less more information to find defendant they could not use the Rather, explained, the court capital count. worthy on the of death weighing the based on jurors make that determination should aggravating factors. mitigating the the appropriate balance between strikes the an instruction Such by speculation the possibly inaccurate” of “uninformed and kind Ramseur, death, at supra, 106 N.J. the alternatives about phase penalty limit the the need to 524 A. 2d mitigating aggravating and to considerations deliberation it jury’s task and makes clarifies the The instruction factors. without ultimately a choice between life is that their decision clear Nelson, 715 A.2d supra, 155 N.J. parole and death. See jury- on what trial court’s instructions find that the 281. We correct. sentencing decision were reaching its consider should Parole Sentence Without K. Provisional Of Life Defendant’s murder purposeful on the imposing the sentence When stated, death the sentence of “In the event charge, trial court imposes Court, provisionally Supreme this Court vacated our is pa possibility imprisonment without of life the sentence judgment trial court’s portion of the argues that role.” Defendant be vacated. should any ex waived is meritless. Defendant argument
Defendant’s 2C:11- imposition of N.J.S.A. challenge post facto without of life 3b(3)(a)(b), automatic sentence mandates an which murdering child while any convicted of for defendant parole has no the court assault. Because committing sexual the course of for defen- to death alternative sentence regarding an discretion court’s by the trial dant, way prejudiced was in no defendant statement. Equal
L. Denied Was Protection And Due Process Defendant Charged A When He Was With Crime Grand Without Jury Ag- Action On The Existence Or Non-Existence Of gravating Factors
1. The Facts 9,1995, argued In a motion on argued June defense counsel aggravating presented by penalty factors State phase capital were elements of the murder crime and should have so, presented grand jury. been Failure to do contended, rights violated his State and federal constitutional *100 process equal protection. due and That motion was on denied I, in supra, basis this Court’s decision Martini 131 222- N.J. at 228, 1208, 619 grand jury A.2d which concluded that the in death penalty prosecutions given not opportunity need be to consider going evidence to the existence aggravating or non-existence of factors. I,
For the in reasons we stated Martini we reaffirm that it is necessary present aggravating not grand jury factors to the Jersey reasons, under the New Constitution. Ibid. For the same we also find no violation of the federal Constitution. See Poland Arizona, 147, 156, 106 1749, 1755, 123, v. 476 U.S. S.Ct. 90 L.Ed.2d (cited (1986), I, 225, supra, 132 in Martini 131 at N.J. 619 A.2d 1208) (finding aggravating separate circumstances are not penalties, merely but are help guide jury deciding standards to verdict). between life or death Jersey Penalty
M. The New Death Statute Does Not Violate Customary International Law
Defendant
Jersey
asserts that the New
penalty
death
customary
Nelson,
statute violates
international law.
held in
We
512,
supra,
281,
Defendant asserts
States Constitution.
Eighth Amendment of the United
violates the
Jersey
is
held that the New
Statute
previously
This Court
has
306;
supra,
700 A.2d
Cooper,
151 N.J.
constitutional.
166-211,
Thus,
Ramseur,
we
O.
Effect
find,
do,
trial
if
we
that none of the
argues that we
as
Defendant
sentence,
his death
then
standing alone warrant reversal of
errors
weight. Defen-
withstand their cumulative
the sentence cannot
errors,
to his
together,
trial court
contributed
argues
dant
that the
constitutionally unreliable. See State
and make it
death sentence
(1954)
Orecchio,
125, 129,
(noting that
A.2d 541
16 N.J.
v.
the trial
aggregate
...
have rendered
“legal errors
their
where
grant-
unfair,
concepts dictate the
our fundamental constitutional
jury”).
impartial
an
ing of a new trial before
I,
A.2d
supra, 123 N.J. at
noted in Marshall
As we
vigorously
contested,
consistently
cases are
protracted,
The fact that capital
legal
that in the course of each
issues
assures
virtually
subtle and difficult
implicate
judges,
Trial
unlike
will be
appellate
taial some errors and imperfections
apparent.
judges,
rulings
for
nial,
heat of
without
opportunity
make their
trial
most
conscientious
review, and not even the
experienced
deliberattve
*101
judges can be perfect.
one.”
perfect
not a
entitled to a fair trial but
“A defendant is
490,
604, 619,
States,
97
73 S.Ct.
344 U.S.
Lutwak v. United
cases,
(1953).
capital
where we
true even in
That is
L.Ed.
“
scrutiny,’ recognizing that a defen-
‘subject the record to intense
I, supra, 123 N.J. at
very
Marshall
life is at stake.”
dant’s
92-93,
I,
A.2d
Bey
supra, 112 N.J. at
(quoting
We satisfied, a trial in the context of opinion. are course of this We guilt, that the overwhelming evidence of defendant’s produced clearly capable affecting combined effect of those errors was not either defendant’s convictions or his sentences. Proportionality
P. Review Act, by Capital As authorized Punishment 2C:11- N.J.S.A. 3e, requested defendant has that we determine whether his “sen- cases, disproportionate penalty imposed tence is to the in similar considering both the crime and the defendant.” Review of defen- pursuant briefing dant’s sentence shall be undertaken to a and argument by schedule to be established Clerk the Court after consultation with counsel.
VII
Conclusion summary, In defendant’s conviction for murder and his sentence addition, death are affirmed. defendant’s convictions for the related are offenses affirmed.
Finally, request proportionality defendant’s for review is ac- knowledged proceed according and the matter will briefing to a argument and schedule to be established the Clerk of this Court.
STEIN, J., concurring part dissenting in part. join portion I in that opinion of the Court’s that sustains conclude, however, capital-murder I conviction. defendant’s sentence should be set aside and the case remanded law, for a penalty-phase Jersey new trial. Under settled New capital evidence that a defendant had been convicted of similar ordinarily offenses would If be inadmissible. such evidence were germane to be admitted because it was disputed a material trial, issue our cases mandate that the trial court instruct unmistakably permitted clear terms about the prohibited capital- uses of such other-crime evidence. Under our statute, punishment offenses, prior defendant’s conviction of *102 murder, statutory aggravating except for does not constitute by jurors deliberating on considered factor and cannot be jurors deliberating in this The defendant lives or dies. whether jurors, those trial did not know that. Ten of penalty-phase however, nine prior had convictions and knew that defendant previously been convicted of sexual jurors believed that he had Notwithstanding knowledge, that defense counsel did offenses. trial court did not deliver a clear instruction request not and the absolutely prohibited from jury they that were informing the determining prior convictions in whether considering defendant’s regard I the trial court’s should be sentenced to death. plain requires that instruction to constitute error omission of the error was death sentence because reversal of defendant’s result.” R. 2:10-2. unjust producing an “clearly capable of I A death-penalty is that the selec- of this trial unique The feature prior not know that defendant had convic- tion of a that did virtually impossible. would have been tions for sex-related offenses July 1994 of of the sexual assault and murder As a direct result victim, Kanka, Jersey Legislature Megan the New 1994, 133, Law, L. c. Registration 1994 the enacted October L. Law, generally re- Community c. Notification Law,” requiring registration “Megan’s to as ferred concerning prior community of relevant information notification Megan’s Law impetus for enactment sex offenders. officials, subsequent to the discovery by law enforcement defendant, Kanka, who lived on the same Megan murder for sex-related family, prior had convictions street as the Kanka had communicated that that information never been offenses and neighborhood. by police to residents provided the trial court day first selection On the and informed them jurors with an overview of the case prospective *103 seven-year-old that it involved the sexual assault and murder of a girl Megan jurors provided named Kanka. The also were with a jurors’ questionnaire questions detailed included about Law, knowledge Megan’s suspicions concerning of their or belief record, jurors disregard defendant’s criminal and whether could any suspicion it such belief or so that would not interfere with ability fairly impartially. their to decide the case counsel, jurors questioned by prospective Of 332 the court and only jurors any knowledge five disclaimed that defendant had a record, sixty-six jurors prior despite criminal stated that their suspicion they belief or about defendant’s record could decide the deliberated, impartially. jurors actually case Of the twelve jurors suspected prior ten knew or that defendant had a record jurors suspected prior and nine that defendant’s record included a conviction for sex-related offense.
B
being
dispute
majority
There
no
that a clear
of defendant’s
jurors
suspected
or
prior
believed
that defendant had
convictions
offenses,
question
for
critical
sex-related
is how the trial court
should
have dealt with that fact
its instructions. That the
jurors
prior
through
learned of defendant’s
record
the massive
publicity
Megan’s
about
the homicide and
Law rather
than
through evidence offered at trial is immaterial.
In Marshall v.
States,
1171,
(1959),
79
United
US.
S.Ct.
judge
prejudicial
ruled was so
it could not be
offered as evidence. The
directly
prejudice
great
to the defendant
is almost certain to be as
when that evidence
jury through
reaches the
it
news accounts as when
is a
part
prosecution’s
greater
evidence.
It
indeed be
for it is then not
may
tempered by protective
procedures.
(citations omitted.)
[Id. at
312-13,
]
S.Ct
not admissible to person prove disposition such as evidence be admitted for other purposes, therewith. Such may conformity knowledge, or intent, identity motive, plan, opportunity, preparation, proof material issue matters are relevant to a absence of mistake or accident when such in dispute. Jersey’s long-standing “perpetuate[s] New That evidence rule *104 when of- that excluded other-crimes evidence common-law rule commit crime.” solely prove propensity to a defendant’s to fered (1989). Stevens, 289, 299, Underly- 115 558 A .2d833 State v. N.J. recogni- the ing and its common-law antecedents “is both the Rule may simultaneously highly pro- be tion that other-crime evidence Id., 300, A.2d 833. extremely prejudicial.” at 558 bative and value, offered Notwithstanding probative other-crime evidence its crime is excluded under solely prove predisposition to commit to G.S., Rule, 145 Accord v. as it was at common law. Ibid. State (1996). 460, 468, N.J. 678A.2d 1092 Rule, is admissible to other-crime evidence
Pursuant
to the
in the Rule of
examples
in
set forth
prove other facts
issue.
may
germane—
be
of facts to which other-crime evidence
the kind
intent,
motive,
plan, identity, or absence of
opportunity,
such as
Stevens, supra, 115
exclusive.
not intended to be
mistake —are
in
300,
absolutely
suggestion
But there is
no
at
prejudice.” Id. at
Finally, prosecutions even criminal in which other-crime probative evidence is found to be admissible its value because effect, prejudicial its a exceeds court nevertheless must instruct a jury purpose may on the limited for which such evidence be used. provides: Evidence Rule 105 When evidence is admitted to one or for as one but is not party purpose judge, admissible as to another or for another party purpose, upon request, jury according-
shall restrict
evidence
its
and shall instruct
proper scope
limiting
but
to waive a
instruction.
ly
may permit
party
instruction,
providing
limiting
appreciate
such
courts must
average juror
compliance
for an
with an
instruction
permits
purpose
to consider other-crime evidence for one
extremely
Accordingly,
but not for another is
insisting
difficult.
limiting
provided,
urged
that such
instructions be
we have
trial
any
carefully
courts that
such instruction “should be formulated
explain precisely
permitted
prohibited purposes
evidence, with sufficient reference to the factual context of the
comprehend
case to enable the
appreciate
the fine
Stevens,
required
distinction to
it
supra,
which is
to adhere.”
N.J. at
645
in
the offense for which the
that are similar
nature to
crimes
Brunson involved an
of this
application
being
defendant is
tried.
Sands,
127,
v.
76 N.J.
That method of
will insure
prior
appear-
impeachment
will
and simultaneously
protect
as a citizen of unassailable veracity
against
risk of
use
prior-conviction
impermissible
using
in
interest
The balance struck
vindicates
State’s
evidence.
adequately
subjecting
on the defendant’s
without
credibility
conviction to cast doubt
prior
prejudice
follows if the
crime was
prior
defendant “to
extraordinary
Pennington,
at
A.2d 816
119 N.J.
named or described.”
supra,
specifically
(Handler,
concurring
dissenting
part).
“The
between lack
difference
J.,
part,
lack of
as a
car thief was
as a
felon and
credibility
repetitive
of credibility
repetitive
negligible
v.
to the accused.” Bendelow
United
to the
catastrophic
prosecution,
Cir.1969)
(5th
(Godbold,
dissenting
concurring in
J.,
part,
418 F.2d
States,
(1970).
part),
379,
I conclude that the trial court’s failure to instruct the in guilt phase of the trial to from exclude consideration their knowledge prior deliberations of defendant’s convictions constitut- guilt fairly ed harmless error. The evidence of defendant’s can be overwhelming, as and in that described context the trial court’s prior omission of an instruction about defendant’s convictions was clearly capable producing unjust not an result. In other circumstances have in limiting we concluded that deficiencies instructions about the use of other-crime evidence constituted Marrero, 495-97, supra, harmless error. See 148 N.J. at 691A.2d 293; G.S., 473-76, 1092; Stevens, supra, 145 A N.J. .2d 308-09, supra, 115 N.J. at 558A.2d 833. however, penalty phase, the omission of an instruction to jury prohibiting prior its consideration of defendant’s convic- in determining regarded
tions defendant’s sentence cannot be as
647 analogous in v. harmless error. We addressed an issue State Rose, (1988), in capital prosecution 112 A.2d 1058 N.J. aggravating factors that defendant had alleged which the State as engaged performance duty, in of police officer the his murdered 2C:ll-3e(4)(h), for the that the murder was committed N.J.S.A. offense, purpose escaping of detection for another N.J.S.A. 2C:11- 3c(4)(f), aggravated battery involved an to the and that the murder 2C:ll-3c(4)(c). victim, penalty phase, Rose after N.J.S.A. the by jury knowing purposeful murder the convicted defendant of or conduct, expert testify his own defendant called witnesses about at the time of the the defendant’s mental and emotional condition homicide, mitigating testimony and character witnesses to offer of concerning good character. On cross-examination witnesses, ques- expert prosecutor and character the both the defendant, prior in “bad acts” of tioned the witnesses detail about allegedly in had including questions about instances which he Mends, girl instances of threatened violence assaulted former youths, disciplinary infractions in against black and instances of school, army prison. in note of the high in the and We took inflammatory and cautioned trial nature of that cross-examination strong possibility prejudice to the courts that because of the defendant, was essen- supervision close of such cross-examination 504-05, However, that the A.2d 1058. we held tial. Id. at jury on the penalty-phase to instruct the trial court’s failure by prior-bad-aet evidence elicited the limited relevance of the required of defen- during cross-examination reversal prosecutor dant’s death sentence. explained in detail the reasons for our conclusion:
We
counsel made sufficiently
not resolve the
whether defense
We need
question
although
limiting
concerning
it
instruction
this testimony,
clear their
for a
request
should
no cause
an issue of such critical
there
be
is self-evident that on
importance
highly
ambiguity.
in
and
or
We
view of the
hold,
repetitive
for understatement
that came
evidence of defendant’s
misconduct
past
inflammatory quality
through
guilt
jury
and
both
the
before the
in the
derivatively
phase
penalty phase,
the trial
witnesses,
in
of defendant’s
phase
the cross-examination
penalty
jury
relevance of this evidence was so
to instruct
on the limited
court’s failure
prejudicial
set aside.
it
defendant’s death sentence
be
requires
clearly
conduct to
have
reviewed
detail the evidence of defendant’s
already
past
We
guilt
jury
of the case.
which the
both
penalty phases
exposed
jury
During
guilt
evidence of defendant’s
racially-
heard
phase
apparent
shotgun
tinged
purchasing the sawed-off
as well as evidence of
motivation for
during
shotgun
and thi-eats to use the
the school
defendant’s defiant possession
[548
1058].
motion,
A.2d
On the
incident.
483-87
Supra
prosecutor’s
yard
juxy
in the
this evidence was befox-e
penalty phase.
Through
witnesses in the
cross-examination
defendant’s expex-t
penalty phase,
(or
concerning
pi’osecutor)
evidence
references
miscon-
by
past
heard
jail.
high
[548
in the
and in
at 496
A.2d
school,
duct
by
ax-my,
Supra
1058]. In
heard extensive
references
addition, the
testimony
px-ovocative
toward his former
to defendant’s acts
violence
physical
prosecutor
gix-lfriends.
*108
1058].
[548
at
497-98
A.2d
The
witnesses wei'e
492-94,
expex-t
Supm
interrogated
buying
about the
incident and defendant’s reason for
also
sehoolyax-d
shotgun.
[548
1058],
at
498
A.2d
491, 494-96,
the
Supra
other than defendant’s
was
witness,
relatives,
character
Virtually every
ques-
aggressively
the
about defendant’s
to “beat
tioned
by
prosecutor
tendency
up”
cx-oss-examinationof some ehax-acterwitnesses included
addition,
women. In
the
shotgun.
references to defendant’s
misuse of the
prior
conduct,
All of this evidence of defendant’s
to the extent it was admissible at
past
guilt
In
the
all, was admissible
for a limited
the
evidence of
only
phase,
purpose.
was
under Evidence Rule 55 to
absence of
incident
admissible
schoolyard
prove
buying
if
accident;
mistake or
admissible at
evidence of defendant’s x-easonfor
all,
shotgun
[548
was
for
same
at 485-90
A.2d
the
admissible
the
pin-pose. Supra
1058]. In the
evidence of defendant’s
conduct was relevant to
penalty phase,
past
of the
and in the case of
witnesses,
test the
and the conclusions
cx-edibility
expex-t
the character witnesses was matex-ial to x-ebut their
to demonstrate
testimony
good
mitigating
defendant’s
character as a
factox-.
jux-y
The
was never told about the limited relevance of
of this
any
testimony____
limiting
evidence is admissible for one
but not for
another-,
When
purpose,
thx-ough
jury’s
instruction is the
device
which to restx-ictthe
use of such
appx-opriate
evidence.
jury
case,
In the
of a
the function of the
has been
penalty phase
capital
sharply
Legislature.
jmy
the
The
must
if the
has
defined
detex-mine
State
by
px-oved
aggravating
if
factors,
a reasonable doubt the existence of
the
beyond
any
jury
mitigating
defendant has
the existence of
factox-s. The
must then
px-oved
any
weigh
aggx-avating
against
mitigating
the
factox-s
the
faetox-s. N.J.S.A.
only
only
2C:ll-3c(3).
jury
weighing
The
is not
in its
to add other
pex-mitted,
process,
weight
assigns
aggravating
the
it
to the
evidence
defendant’s
conduct to
past
conduct,
nor to consider other evidence of defendant’s
to the
factors,
past
except
mitigating
detx-aeting
weight
assigns
extent
as
from the
it
factox-s,
offex-ed rebut
mitigating
to the
factox-s.
jury
unguided concerning
In this
was
the uses to which
case, however,
totally
it could
the abundant evidence of defendant’s
conduct that was adduced at
put
past
jury
no
trial. We therefox-e have
confidence that
did not consider such
weighing
evidence
the course of its
We concede that there
impx-operly
px-ocess.
jury
limiting
is no
to assure that a
adheres
to the mandate of a
way
scrupulously
instruction. But in a death
context, and
the face
such abundant and
penalty
evidence of
conduct,
defendant’s
for
careful and
inflammatory
past
necessity
limiting
jury
compelling.
instruction to this
was clear and
Its omission
precise
charge
prejudicial
from the
was
a reasonable doubt and
beyond
compels
reversal of defendant’s death sentence.
(citations
(footnote
omitted)
omitted).]
[Id.
505-08,
Justice HANDLER KING, assigned), dissenting part in (temporarily P.J.A.D. in concurring part. by (page 692 to given reasons Justice Handler IV
For the 165) dissenting opinion, agree I page 153 to of his 737 A.2d proceeding the trial insofar prosecutorial that misconduct tainted guilt is concerned. Since the evidence as the death sentence overwhelming I not think that such misconduct had the was so do guilt finding. I remand for a new capacity to taint the would join majority only. respects I penalty-phase trial all other guilty it verdict. opinion insofar as affirms HANDLER, J., dissenting. justice By is blind. that we mean
It has been often said
judicial
preconceived
preordained.
or
resolutions are not
justice
today
by way
have come
of a
this Court metes out
seems to
specific
execution of
course selected to reach
destination —the
Timmendequas.
punishment
impose
is a
that we
Jesse
Death
Yet,
upon
among
seeking
to administer this
the worst
us.
punishment,
help
bring
we cannot
but
out the worst
ourselves.
justice
presents
danger
system
failing
of a
in the
This case
challenge
prosecution
capital
face of its most extreme
—the
has,
decision,
by
compromised
murderers. The Court
its
well-
legal principles
justify
death sentence.
established
say
certainty
can
with
that the crime committed
Jesse
One
horrific,
Timmendequas
uniformly
it
so
condemned that
for sex offenses nationwide. See Doe
landscape
changed
legal
Poritz,
(1995).
1, 17-19,
v.
142 N.J.
equal
I Defendant, Timmendequas, appeals his conviction for Jesse 30, 1997, capital May his death defen- murder and sentence. On kidnapping, dant was convicted of the sexual assault and murder seven-year-old Megan Kanka. He was sentenced to death on 20,1997. June Court, nineteen with this most of which
Defendant raises issues claims, however, remedy. a Four of defendant’s do not warrant clearly require reversal.
First, reconsidering countermanding the trial court erred in and empanel jury County. That its initial decision to a from Camden only implicated impaired reconsideration and reversal not right jury to a selected from a fair defendant’s Sixth Amendment community, likely cross-section of the it also contributed to the prejudice claims of error— that is raised another defendant’s majority knowledge suspected or a members had long-time was a sex offender. The trial court’s failure impartial jury thus empanel to use all available methods to an defendant, prejudice prejudice resulted in extreme a level of least, requires, very that this Court has heretofore held at the Next, prosecutor engaged pattern in a penalty new trial. throughout guilt- penalty-phase trials misconduct that, view, my requires reversal of defendant’s conviction as Finally, well as vacation of his sentence. the trial court committed failing mitigating pursuant reversible error to admit evidence for admission of such evidence. this State’s broad rules therefore, I, dissent.
II Defendant asserts that the trial court’s decision reconsider its empanel County, from which initial order Camden *111 652 empanel a granting of the State’s motion
resulted County, a violation of his Sixth and constituted from Hunterdon a fair and rights process to due and Fourteenth Amendment therefore, and, reversed jury, that his conviction must be impartial majority agree I with the that defen his sentence vacated. and by rights implicated not the trial court’s process dant’s due were 562, issue. See ante at 737 reconsideration of the venue second however, majority, I find that defendant’s at 80. A.2d Unlike clearly rights were circumvented. Sixth Amendment (1) important factors: claim is based on two Defendant’s County demographics Hunterdon and disparity in racial between (2) inflammatory County; nature of the level Mercer coverage in this case. press
A.
22, 1995,
September
publicity
due to the flood of
that
On
73,
case,
550-51,
this
see id. at
737 A.2d at
inundated
venue,
change
for
in which he cited a
pretrial
made a
motion
a
articles,
stories, columns, cartoons,
including
separate
of 544
total
advertisements,
editor,
County’s
and letters to the
from Mercer
daily
the Trenton Times.
newspapers,
two
the Trentonian and
Analyzing
publicity in
the standard used in
accordance with
(1988)
Koedatich,
225, 271-73,
v.
112 N.J.
perhaps unprecedented publicity. ongoing Harris case. in the ruling, requested hearing Subsequent to the court’s the State on the location chosen the court for the trial because the prosecutor yet presented demographies. on had not evidence *112 on court allowed the State to submit a motion for reconsideration 21,1995, the choice of venue. On November the State did so. At 15, 1995, hearing, argued that the court the December the State ruling light should reconsider its on venue of the constitutional rights family, pursuant Rights of the victim’s the Victim’s (VRA), Jersey see N.J. Amendment the New Constitution Const, ¶I, empanel a art. 22. The State asked first that the court foreign jury changing from in lieu of the venue of the Camden importance protecting rights victims’ Recognizing trial. the change responding argument to the State’s that a of venue hardship it would cause for would violate the VRA because the victims, granted the the court the motion on December State’s 1995, ordering foreign jury County that a from Camden be County. emphasized empaneled Mercer The court also case, coverage explained press invective nature of the of the impugn its that the court’s redetermination of venue did not prevent original decision that maximum efforts must be taken to prejudicial press coverage.1 of the and combat the effects similarity into account the of Mercer and court also took Camden stated, The court specifically: 20, 1995, First, the Court's decision of record of October should be noted. change There it was ordered that a of venue should occur and the county Court Camden. The discussion of record and that was selected by at that time are in this decision. reasons incorporated Specif- expressed prejudice finding the court that a realistic likelihood of made ically, from existed in Mercer is one that the Court publicity County pretrial continues to hold. could demographics racial and the fact Camden in terms of jury the selection of a for the case. accommodate Camden, foreign jury from Following empanel a the order request oral that the court consider made an informal State instead, County argument an jury from Hunterdon empaneling a original response In to that presented in the State’s motion. not foreign jury empanel that its order to request, the court ruled stand, arguments but that it would consider State’s would 29, 1996, January the court favor of other counties later.2 On empanel jury motion to from Hunterdon granted the State’s so, its County doing the court overruled instead Camden. demographics original finding that the racial of Camden and lengthy “readiness” of the Camden courthouse to accommodate jury. justified a The court and cumbersome voir dire Camden pointed original it had its decision to have the out that based brought County significantly in from on the similar racial Camden county County, accepted the demographics of that and Mercer but county argument demographics the racial State’s defendant and paramount should not be a concern because both in this court also the victim were of the same race case. The County appropriate county an noted that Hunterdon would be pending it had no death from which to draw the because administrators, penalty judges the court and Sheriffs cases and *113 they spoken officers to whom the court had had confirmed that jury ample lengthy facilities to accommodate a selection had Further, jurors process. the court found that travel time for the County from Hunterdon to Mercer would be less burdensome than any county. it would be from other
B. argues empanel a Defendant that the trial court’s decision jury County right from Hunterdon violated his Sixth Amendment 2 State, consent, had, motion, The with the court's in its first reconsideration right demographic in reserved the information subse- present support jury change selection motion if it succeeded on the of venue issue. quent
655
jury
impartial
to a fair and
under the United States Constitution
I,
right pursuant
paragraph
comparable
and his
to article
10 of the
Jersey
interlocutory
He
first
New
Constitution.
asserts
rulings
motions for reconsideration of
in criminal cases are not
disagree
join
majority
I
authorized.
with that contention and
issue,
553-54,
analysis
in its
of that
see ante at
The
court reversed
venue
(ABA)
application
Bar
based on its
of the American
Association
selection,
regarding change
presented
guidelines
of venue and
Harris,
539,
supra,
N.J.Super.
in
282
at
660 A.2d
Harris,
148-49,
by
supra,
in
endorsed
this Court
venue;
(3)
jurors
traveling
in
The
from their home
to the
county
hardships
prospective
jurors;
transporting
site of the trial and the burden
the court
imposed upon
(4)
religious
demographic characteristics of
racial, ethnic,
and other relevant
a fair trial
an
venue,
insofar as
affect
likelihood of
they may
proposed
jury;
[and]
impartial
(5)
justice.
other factor which
be
the interests of
Any
may
required by
(quoting
Criminal Justice
Standards: Trial Crim. Just. Sec. Standard 15-1.4 ed. by Jury, (ABA Standards)).] First, pretrial the Court considers the nature and extent proposed county. Beyond dispute, publicity publicity following The Harris court of the third ABA factor: inserted place witnesses, on the and other interested “CT]he relative parties, hardships imposed regard with to the venue...." persons proposed
656
ante at
trial was “horrendous.” See
preceded
defendant’s
publicity,
analyzing
the extent of the
A.2d at 74.4
737
however,
levels of circula-
underestimates the different
the Court
inflammatory Trenton
Hunterdon of the two
tion Camden and
at
the Trenton Times. See id.
newspapers, the Trentonian and
empanel-
558-59,
(noting that
has allowed
A.2d at 77-78
Court
disparities
publici-
level of
juries
greater
with far
between
ment
county
jury
empaneled).
which
was
ty in
and that from
determining
proposed coun-
for
whether the
The Court’s standard
coverage
point
press
of view of
ty
acceptable
an
choice from the
is
newspapers
only the number of relevant
requires examination of
county
county, to
whether the
circulated in each
ascertain
ibid,
murders,”
(quoting
publicity about
“inundated with
Feaster,
395), and
supra,
Rationalizing its of a selected pretrial publicity that “there be found trial court observed will Although is any county in this state.” the court’s observation correct, coverage given the state-wide and even national of this case, steps to take all available to that does not obviate the need coverage of the offensive was a letter from Trentonian Typical published reader, entitled, CREEP[:]" "STONE THE Megan Kanka should be off the face of the who killed wiped pervert stoning into A would be nice. Better take him yet, painfully. public earth— give his feet to the floor and him an ax. Then set house, an abandoned nail feet or burn to death. the house on fire. He can either cut off his own Aug. Talk, Trentonian, 6, 1994, 23.] [Back suggested, to a reader’s call
An editorial note in the same paper response an hill "castrated, tattooed, that defendant be or buried to his neck in ant up tattooing be with a with his head doused in performed honeyf,]" Aug. Editorial, Trentonian, 24, 1999, needle." at 30. "rusty
657 jury by prevalent, exceedingly prejudicial empanel a untainted press coverage plagued County presented this case. Camden possibility jury. According for such a to the best then-current statistics, 107,776 County population Hunterdon had a of as of 1991, 39,000 502,824 population or households. had a of Camden 181,800 in or households. The circulation of the Trentonian 110, households; County in 1991 or Camden was .06% Camden 1,342, County in Hunterdon it was or 3.44% of the households. in The 1991 Trenton Times circulation Camden was under or households; Hunterdon, 1,796, in .01% of the 1992 estimate was or Jersey Municipal 4.62% of households. See New Data 1994-95 Book). (.Data then, Assuming overlap, papers Book no the two County in in combined to reach .07% of the households Camden approximately in 1991 and 8.06% of the households Hunterdon according to combined 1991 and 1992 estimates. Ibid. When 181,690 calculating according population, to circulation households newspapers, compared in not receive either of the as Camden did 37,658 newspa- to in Hunterdon. The rates of circulation of the significantly pers Camden and Hunterdon are different. Even “inundation,” if the rates themselves do not connote this Court’s prejudice by designed possibility standard is to assess the jury pool likely exposed is predicting whether to have been by press. exposed we know the case Here case, prejudicial coverage of this so the circulation rates of the newspapers might relevant to indicate that have are Camden by coverage.5 produced jury pool prejudiced that was not rates, jurors may potential Based on those the likelihood that who inflammatory pre-trial exposed not have been to the most publicity in Camden but not in Hunterdon is could be identified substantial. defen- Moreover, later, the court had several motion opportunities upon from Camden after the level of dant, with one press replace at 667 n. infiltration in the Hunterdon was discovered. See pool infra
A.2d at 139 n. 9. therefore, certain- relating press coverage,
The Harris
factor
not be
Although it should
ly weighs in favor of defendant.
analysis,
appropriate assessment does not
an
dispositive
our
because,
simply
as the trial court
outcome
produce a neutral
asserted,
publicity
any county.
A trial
to be
there is bound
“
danger
prejudice [from
required to ‘minimize the
court is
adjudicatory pro-
pretrial publicity] will infiltrate
extensive
”
(citations
Harris, supra, 156 N.J.
The third
the burden
members, weighs in
The travel
time from
favor of
State.
issue,
that from Hunterdon.
I take
Camden to Mercer exceeds
however,
willingness
accept
argu-
with the Court’s
the State’s
jurors
“the area in Camden where the
would be
ment
because
desolate[,]”
dropped
relatively
a local law
off was
described
hours,”
dangerous
officer as “a
area after
the burden
enforcement
jurors
County
on Hunterdon
would be “less onerous.” Id. at
unsafe,
remedy
If
should
court’s right provided a defendant’s constitutional empaneled, should be Moreover, the impartial jury is not circumvented. to a fair and against demographic factors is not to be measured relevance of race, victim’s characteristics. The ethnici- the defendant’s or the class, education, gender, age, economic and social ty, religion, repre- is parties cannot determine whether status of community large. character of at The collective sentative community operative measure of his becomes driving acknowledged that is to be the peers. This factor is one community in representation our force behind our commitment weight, justice significant afforded system. It must therefore be right directly implicates it defendant’s Sixth Amendment because community. See discussion to a fair cross-section infra 662-64, at 136-37. 737A.2d out, correctly points the differences between the
As the Court demographics in and Mercer and those Hunterdon and Camden measures, including gender, per comparable were most Mercer income, capita percentage college graduates. Ante at 560- and however, disparity, 737A.2d at 79. The racial between Mercer significantly greater than that between Mer- and Hunterdon was according recently cer and Camden to the most available census. White, County African- In Hunterdon was 96.3% 2.1% American, White, Hispanic; County and 1.6% Mercer was 75.0% African-American, Hispanic; County was 18.9% and 6.0% Camden African-American, White, Hispanic. 7.2% See 76.0% 16.2% and Book, supra. demographics of Data The racial Camden identical, almost whereas a substantial dis- Mercer Counties are minority population in parity percentage exists between the Hun- clearly County weighs and that in This factor terdon Mercer. recognized favor of defendant. The trial court as much its first change two venue orders. sum, four, pertaining press coverage factors one and
demographics, weigh heavily in favor of defendant. Factor two is three, jurors, hardship to favors neutral. Factor which measures *118 directly impli- four State, one and Because factors slightly. trial, they must be right to a fair constitutional cate defendant’s factors. The trial the other weight more than significantly given County “[t]he because keep the trial Mercer decision to court’s in our dimension a matter of constitutional of victims are rights to afford the failure State,” principle. The Court’s recognized selecting a same deference rights the constitutional defendant’s jury inconsistent foreign is both import county from which then reversal must requires error indefensible. Whether and considered. be
C. reversing original by its abused its discretion The trial court county from which appropriate finding that Camden accurately only failed to not foreign jury. The court empanel a right to a factors, compromised it Harris assess the Amendment and by the jury required as Sixth impartial fair and Jersey 5, 9, New Constitution. I, and 10 of the paragraphs article (1986) 524-25, Gilmore, A.2d 1150 103 N.J. v. See State 5, 9, togeth- I, read and when paragraphs (holding that article is the defendant er, prosecutions criminal “guarantee that all on jury without discrimination by impartial an to trial entitled color, origin, race, ancestry, national principles, religious basis from a by jury drawn trial [including] right ... or sex community.”). empanel- The of the cross-section representative prejudicial in two County resulted Hunterdon ment of a a cross-section represent jury pool did not resultant outcomes: required the Constitution County community as the Mercer and, Hunterdon guidelines; ABA with the in accordance information highly prejudicial knowledge of County jurors had alleged trial, and his regarding defendant admitted that was not conviction of defendant’s require reversal Both results crime. here. first is discussed of his sentence. vacation impartial by an “right to trial emphasized the has This Court community.” cross-section representative from a drawn Gilmore, Court reasoned: 1150. 511 A.2d Id. at *119 662 heterogeneous jurors belong [I]n our will to diverse and often society inevitably overlapping groups religion, origin, age, defined ethnic or by race, national sex, education, economic occupation, condition, residence, place political affiliation; jurors
that it is unrealistic to to be devoid of or expect opinions, preconceptions, groups; even biases derived from their life deep-rooted such experiences encourage hence that the an overall only achieve is to practical way impartiality groups jury of a of such on representation so that the variety respective antagonistic, biases of their to the extent members, are will tend to cancel they each other out. (quoting [Id. at 511 525, A.2d 1150 v. 22 Wheeler, Cal.3d People (1978)).] 583P.2d Cal.Rptr. Gilmore involved a challenge prosecution’s to the perempto- use of ry potential jurors strikes to exclude jury. black from a Never- theless, applies is, the case principal to the issue here —that purpose right jury behind the pool representing a a cross- community. section of the Rule 3:14-2 The comment to empha- sizes the need for a fair cross-section: demographic change
Where ... race is the characteristic at issue, of venue having demographics foreign jury must to a be the same racial county or a must be having demographics drawn from a the same racial county as the in which county contiguous the crime was even if committed, there is no such county. (1998) B. [Sylvia Pressler, Rules, Current N.J. Court comment on R. 3:14-2 (citation omitted) added).] (emphasis Harris, supra, Appellate Division held that the same state constitutional which underlie the limitations that policies Gilmore challenges a use of imposes upon prosecutor’s peremptory exclude members of a jury demograph- race from a also particular a trial court to require consider racial exercising change ics in its under Rule 3:14-2 to authority venue of a criminal foreign jury. trial or to a impanel
[282
at 417,
539.]
660A.2d
N.J.Super.
That
supported by
contention is
guidelines,
the ABA
explic-
which
itly incorporate the
right
Sixth Amendment
to a
impartial
fair and
Standards,
jury
(“The
into the fourth factor. See ABA
supra
racial, ethnic, religious
demographic
and other relevant
character-
venue,
they may
proposed
istics of the
as
insofar
affect
likelihood
a
trial
an impartial jury.”) (emphasis
added).
fair
majority
The
contends that because the
presents
case at bar
no
overt racial
given
issues
that both the victim and defendant are of
race,
the same
right
to a
represents
a cross-section
community
of defendant’s
paramount.
need not be
See ante understands,
563-64,
Although
fully
in racial
between Hunterdon
Counties
420,
N.J.Super.
fair
at
660
great
guarantee
too
a
trial. 282
was
rights of
defen-
A.2d 539. The Harris court stated that the
dant,
judicial system
public’s perception
as well
that
as
minority groups
fairly, especially for those members of
operated
jury pool,”
in the
were at stake
underrepresented
“who are
community. Id.
choosing jury
adequately represented
a
McCollum,
418,
(referring Georgia
v.
505 U.S.
at
The 1990 census indicates that disparity comprising demographics of and Hunterdon with blacks counties, only Mercer 2.06% of the residents of Hunterdon to 18.87% of the residents of compared Mercer. At the same there are a number of time, other counties that are larger the same distance from Mercer as approximately Hunterdon have much black in Middlesex, 7.98% of the populations: black; residents are in Monmouth, Burlington, 8.54%; 14.31%; in 16.24%.7 Camden, [Id. 539.] at 660 A.2d case, jury In this a from preserved Camden would have defen- right dant’s to a fair community cross-section of the without compromising majority a selecting the other Harris factors for county foreign jury for a empanelment. Reversing its initial appropriateness assessment of the empaneling from Camden, plainly prized the trial court administrative convenience right over defendant’s to a fair trial. support- That result is not able.
The Court asserts “there is no
composition
assurance that the
pool
radically
would have been
different
Camden
County.”
Ante at
is,
A.2d
80. That contention
however, only speculative
pool
rationalization. The
pro-
of 715
spective jurors contained fifteen minorities —five African-Ameri-
cans, Asians,
six
Hispanic,
one
and three East Indians. That two
percent minority representation
begin
does not
approach
minority representation in
County (twenty-five
Mercer
percent),
and is not surprising given
minority
the small
population in
*121
(less
County
Hunterdon
percent).
than six
If the trial court had
jury pool
selected a
Hunterdon,
from Camden instead of
the level
minority representation
of
jury
pool
the
would have increased
to a level
representation
commensurate with what the
would have
in pool
not,
been
a
from
County;
Mercer
if it had
defendant would
have had a valid cross-section claim to make based on Camden’s
jury
system.
Taylor Louisiana,
selection
522, 538,
See
v.
419 U.S.
692, 702,
(1975)
690,
95 S.Ct.
42
checks,
L.Ed.2d
703
(“[J]ury
pools
names,
of
panels or
juries
venues from which
are drawn must not
designed
systematically
[be
to]
exclude
groups
distinctive
in the
7 After remand from the
Division,
the trial
Appellate
court decided to empanel
Burlington
a
from
Harris,
with a sixteen
County,
black
percent
population.
156 N.J. at
149,
supra,
665 thereby reasonably representative there- community and fail to be of.”). minority relatively percentage the small of overall Given counties, potential that increase representation disputed in the (almost as twenty percent) glossed insignificant. cannot be over that
Finally, the
is no evidence
“[t]here
Court’s conclusion that
ability
composition
jury’s
affected the
the racial
venire
563,
80,
737
is not relevant to our
impartial,” ante at
A.2d at
to be
regarding
A
a
Amendment claim
violation
assessment.
Sixth
subject to
harmless
requirement
fair cross-section
is not
a
right requires
analysis.
of this constitutional
error
Violation
(1988)
45,
(Bey
Bey,
In
v.
112 N.J.
[I]n of error or penalty phase capital impact ... on the a determination that case, we determine basis of reversibility qualitative case, in the of the entire whether the error considers, clearly capable context affecting The involves either the verdict or sentence. only exception [that] their nature east so much doubt on the “constitutional violations ... by very can never considered fairness of the trial as matter of be that, law, they process harmless.” (quoting Texas, 548 Satterwhite v. II, 94-95, 112 at A.2d 846 N.J. [Bey supra, (1988).)] 1792, 1794, 100 284, L.Ed.2d 249, 250, 108 486 U.S. S.Ct Satterwhite, supra, that Court in held Supreme The United States may be considered Amendment constitutional violations Sixth analysis require and those that automatic under harmless error “per- not the violation distinguished are whether or reversal 256, 108 1797, at proceeding.” at S.Ct. vade[s] entire U.S. 293; Kemp, 778 v. F.2d 100 L.Ed.2d see also Coleman (11th Cir.1985). fulfill the Sixth Amend- n. 24 failure to a cross-section of the right jury empaneled to a from ment We held Gil- community can never be considered harmless.8 subject 8 Although to a is not a violation of the cross-section requirement to lead with potential error other constitutional violations analysis, harmless Ramseur, we held in often will be. For to a cross-section violation example, be 188, that a violation should not N.J. at 524 A.2d cross-section supra, evaluating claim assumed. defendant's equal prosecutor's protection *122 challenges jurors valid but two black was use of strike improper peremptory 666
more, swpra, that our
provides
Constitution
“right
by
for a
to trial
impartial
an
jury
representative
drawn from a
cross-section of the
523,
community,”
1150,
A.2d
Its infraction
not be treated as
may
harmless error.
[Id. at
1150.]
511 A.2d
543-44,
holding
Harris,
That
supported by
is
supra,
the decision in
which the Court
demographics
found that the
factor of
ABA
guidelines
require
did not
reversal
demograph-
because the racial
Burlington
ics of
and Mercer Counties were “substantially simi-
150,
lar.”
The Court contends “[t]he record reveals that the trial court took more than adequate danger measures to ‘minimize the ” prejudice would infiltrate process.’ 566, See ante at (citation omitted). A.2d at 82 The diverse beliefs and views of the County Mercer community, in which this trial would have been if press however, held not for coverage, represented. were not the error harmless, we held that defendant must also show that cross-section went unfulfilled to requirement make out a Sixth Amendment claim. We also found that reversal was not because the required minority's grand jury, jurors, on the representation which consisted of nine black was not " Ibid, (quoting "reduced to 'impotence.' Soares, Commonwealth v. 377 Mass. cert. denied, 461, 499, 387 N .E.2d 444 U.S. 516 n. 100 S.Ct. 62 L. (1979)). Ed.2d
667 563, defendant, see id. at against of leveled The amount evidence overwhelming evidence (noting “[gjiven the 80 that 737 A.2d at defendant, jury a from Camden highly doubtful that it is against sentence”), is irrelevant.9 or different verdict have reached a would in the failure to that inheres prejudice cannot minimize One the diverse representing jury pool awith provide defendant tried. he should have been community in which of the viewpoints jury was impartial fair and right to a constitutional Defendant’s Therefore, must be reversed. See Gil his conviction violated. 544, (reversing and more, A.2d 1150 at 511 supra, 103 N.J. violation). of cross-section remanding for new trial because Ill most a fair trial because claims that he was denied Defendant suspicion of his knowledge or sitting his case had jurors on the trial holds convictions. The Court sex offense prior knowledge of jurors any with for cause to strike court’s refusal impossibil light presumed proper in record was Ante at knowledge. jury without such empaneling a ity of asserts, crucial, that the is the Court is A.2d at 82-83. What 737 conducting thorough voir dire by a prejudice prevented court trial impartial, remain if or she could juror was asked he each which instructing at various 572-73, at 737A.2d id. at presented solely on evidence the case trial to decide points in the that the Court’s I believe trial,10 A.2d at 86-87. at 737 id. it is inherent- to our majority’s irrelevant analysis, conclusion is not only The jury's guilt Although to a conviction is relevant evidence of ly insupportable. a defendant’s blameworthiness— establish evidence does not defendant, such convic- sentencing so, were jury’s decision. If that ultimate the basis for in a guilt result overwhelming would automatically evidence of tion based on would not have the sentence contention, therefore, The death sentence. against is funda- overwhelming defendant" "given evidence been different misguided. mentally charged the when it admonitions these court did not repeat The trial following: sentencing court stated only deliberations. to the phase prior efficacy assessment of the palliatives the trial court’s is artificial disagree and unrealistic. I analysis with both the Court’s determination.
A.
1. 7, 1996, May On the United States require Senate voted to all implement states to some system. kind of sex offender notification *124 coverage The of this national widespread effort was throughout and, indeed, our country. State widely It was publicized that instigation defendant was the for the law. Some news stories explicitly alluded to prior defendant as a sex offender and referred to his prior two sex offense convictions.
The sex offender notification in law this State was named Law, Megan’s 10,1996, after defendant’s May victim. On prior to dire, voir defendant moved to strike for jurors cause all who had knowledge Megan’s ground Law on the anyone with this knowledge likely would make the association Megan’s between defendant, Law and necessarily and conclude that defendant had a prior record as a sex offender. Defendant probing contended that jurors knowledge on their only spread, increase, would and reinforce knowledge, such and thus could problem. not correct the rejected objection, court opting pursue instead to extensive questioning. voir dire The trial court conducted voir dire over three Following months. examination of the extensive jury questionnaires, attorneys the court and engaged in an extremely detailed oral questioning of potential juror, each refer- ring to questionnaire certain answers in the signaled potential jurors, As should decide this case in you the same that all reasonable way or persons approach any You should problem any consider the question. applying evidence knowledge and, presented you and your life’s your should light experience, and evaluate you fairly the evidence reasonably in knowledge keeping of how your behave, in mind that it people is the of the evidence quality not the or presented, number of quantity witnesses
that controls. another, attention paying particular or and of one form bias and their knowl- newspapers jurors read the Trenton whether record. Each criminal Megan’s Law and defendant’s edge of had or she either that he subsequently empaneled answered juror disregard that or could knowledge prior convictions no at trial to decide presented only use the evidence knowledge and Throughout voir penalty phases. guilt the case at both juror who case, that each asked defense counsel this dire prior convicted of had been suspected that defendant or believed requests were denied cause. Those struck for sex offense be majority potential of the when a April each case. On of them adequate number questioned and an jurors had been court, panel excused moved to have qualified County because in Camden recommenced selection impartial to remain be unable that the would likelihood record. knowledge criminal of defendant’s light of their collective also denied. application That knew or jurors on the case two was that all but
The result ten, nine at Of those prior record. defendant had suspected that a sex of- prior included record that defendant’s suspected least addition, several conviction, as much. and one knew fense *125 notions preconceived knowledge and general jurors had more her D., during voir dire about asked when the case. Juror about that, ‘Well, that he case, heard I’ve responded, knowledge of the effect, any, if juror asked what was her.” When did murder member, she a if were might have on her she knowledge that to both sides I can listen stated, impartial, that I can be “I think I I can be say, and feel has to each side it and hear what he court that told the Juror C.B. dealing with that.” impartial 12th District Zimmer of the seeing Representative remembered con- made the C.B. discussing Megan’s Law. Juror television on defendant, him to which led Megan’s Law nection between conviction. When offense prior had a sex that defendant believe anything heard or if he had for Zimmer if had worked asked he other, he way or the sway him one that would from the broadcast he that questionnaire in his L. stated “No.” Juror responded, 670
reads the Trenton Times. He noted he had not read about story regularly, enough but had read to state Megan [t]hat Kanka was killed in a house across the street from where she lived murdering Mercerville. That lived in the person house was accused of her. That she was in some lured into the house or enticed way into the house.
And the that lived there had a conviction for a person sex offense. prior addition, L. questionnaire Juror wrote on the that he had seen parts Megan Kanka’s funeral on the news and that he remem- pink bered the Megan’s family ribbons wearing people putting were around trees to Megan. remember He recalled seeing Megan’s parents on television upset they and “how were.” examples highlight
These
the extent to
press
which the
cover-
age in this
and,
case saturated the
County jury pool
Hunterdon
indeed,
jury, contrary
the actual
to the
impression
Court’s
that the
county
clearly
chosen
“was
outside the
range
circulation
of the
559,
(citation
Trenton newspapers.” Id. at
2.
The trial
responsibility
preserve
court’s
integrity
jury “under both the federal and state constitutions ...
is at its
peak in
involving
cases
penalty.”
Williams,
the death
State v.
39, 63,
(1983) (Williams
N.J.
I);
Ramseur,
A.2d 641
see
supra,
671
Jackson,
(1964));
148, 160,
1
N.J.
203 A.2d
see
(quoting State v.
43
(1976).
Deatore,
100,
v.
70 N.J.
In State v. No. inevitably particular prejudice recognized court trial jurors cognizant of the defendant’s commission when are results commission) (or one for alleged of another crime similar case, was the court concerned he trial. In Feaster’s which stands knowledge murder for which of a second that the not have The trial court charged but not convicted. had been as County, “[problems but began jury in Gloucester selection County jury selection soon became with Gloucester associated potential jurors ... it difficult to determine whether apparent directly.” question asking without knew of the second murder Feaster, spite supra, 716A.2d 395. continued 156 N.J. *127 672
efforts the trial thorough court to conduct a searching voir dire, finally it jury empaneled concluded that a could not be from Gloucester: I do not have the confidence I simply level that feel I should have to be assured jury, consisting
that this will a fair and process yield of no one who impartial is to have heard about the other murder and likely this defendant’s in it. implication
[Id. at 49, 395.] A.2d Accordingly, the court County selected Salem for selection began lengthy process again. II, Bey 45,
In supra, 112 N.J. 548 A.2d the Court reversed the defendant’s conviction because the trial court failed to individ- ually jurors examine the to possible exposure determine their publicity midtrial revealed the defendant’s connection to another murder for which he had been indicted at the time of trial. The Court held that [j]urors to this exposed could have publicity discovered that the second murder was committed close in time and in a similar [murder manner to the on which they imagine greater deliberated]. It prejudice is hard to with a publicity capacity during jury case. The trial court itself concluded as as much, selection juror indictment____ it excused for cause who knew of any the second We believe coverage in the local repeated created a realistic press that at possibility time of defendant’s motion, information have may reached one or more of the
jurors.
[Id. at 90, 846.] 548A.2d A problem similar flagged was Biegenwald, State v. 126 N.J. (1991) (Biegenwald IV), A.2d 172 but we held that no prejudice resulted “[t]he because voir dire of the one deliberating juror who indicated awareness of more than one murder not [did] any reflect awareness of presented facts not to be and considered during sentencing proceeding.” I,
In supra, Marshall we declined to reverse the defendant’s response conviction in to defendant’s claim that was so by pretrial publicity tainted that it could not impartial. have been doing so, however, we stated: juror We find no indication that any so tainted by as to affect pretrial publicity deliberating juror the deliberative We process. emphasize who any indicated knowledge exposure also pretrial publicity disclaimed detailed any about the significant case---- trying we note the Finally, differences between the ease in nor defendant was Neither the victim and in Atlantic County. Ocean County the record that the was no indication in in Atlantic There County. prominent to his defendant or was hostile toward predisposed Atlantic County community prejudice from guilt. likelihood” of that there was no “realistic We are convinced publicity. pretrial 85.] 586A.2d
[123 78-79, N.J. juror exposed pretrial that a has been it is established “Once *128 an then, right to vindicate a defendant’s order publicity, unequivocally establish that the the voir dire jury, must impartial opinion or aside.” juror put information potential can II, 433, supra, (emphasis A.2d 1172 113 N.J. at 550 Williams II, added). supra, we reversed the defendant’s In Williams inadequate to the voir dire was ground that on the conviction using problem described the impartial jury. The Court ensure an Minnick, including the voir dire juror who examples, several as to the defendant’s might opinion have an that she had stated put that she could juror contention guilt. spite In Minniek’s had fact that she impartial, as well as the aside and be opinion her case, familiarity nor of the of the facts specific no recollections the voir dire “was name,11 we noted that with the defendant’s indispensable fulfill role an insufficiently probing [its] [as] II, Williams jury.” of a assuring impartiality the for mechanism 435, A.2d 1172. supra, 113 N.J. at 550 following: 11 consisted, dire The court’s voir part, a lot of it. I truth, don't remember tell the I really MS. MINNICK: To you ago, mean it was a know, year what you very remember happened, —I details, know. remember it, you that I read but I don’t specific and I know generally about it? do remember THE COURT: What you at girl stabbed, and it murdered, happened was MS. MINNICK: That raped, night, was what all I remember happened. and that’s really THE COURT: That’s it. details. don’t remember Yeah, I really specific MS. MINNICK: dealing Anything with Mr. Williams articles that was in those THE COURT: specifically. wasn't familiar. No, the name really MS. MINNICK: 1172.] A.2d 113 N.J. at II, supra, Williams IV, Biegenwald supra, responded we to the defendant’s claim juror knowledge pertaining
that a
of facts
to unrelated
with
investigations
murder
of the defendant should have been struck
although
for cause. The defendant claimed that
counsel had
peremptorily
juror,
juror’s subsequent presence in
excused the
jury
required
possibility
room
reversal because of the
that she
“might
triggered]
by
mass recall of inadmissible evidence
[have]
jurors.”
at
Rejecting
the other
126 N.J.
[Id.
172.]
27-28,
A.2d
Harris,
approval
supra,
This Court noted with
that one
precaution
taken
the trial court that
lessened the need for
any juror
reversal was the court’s decision to strike
for cause who
regularly.
read the Trentonian
Time and juror knowledge of a defen- resulting from prejudice terms that taint the likely is or bad acts prior convictions dant’s similar jurors with effectively requires that impartiality of the Here, more knowl- jurors had far knowledge be struck. such any of the aforementioned crime than edge and his of defendant though II, even conviction Bey we reversed defendant’s In cases. know of the defendant’s jurors might only suspected that we prejudi- more acts here are even The similar indictment. similar they are convictions. Bey II because than those cial TV, conviction not reverse defendant’s supra, we did Biegenwald knowledge juror’s only because plain error standard under *130 not ex- that did murder indictment other to defendant’s related trial, prejudice was there- presented at information ceed Here, by limiting fore minimized instruction. we review a conviction, juror’s knowledge of prior defendant’s identical evi- presented dence of which was not at trial and was therefore not by Moreover, accompanied limiting only instruction. not do we suspect jurors may that some of the have known of defendant’s conviction, prior sex they offense we are certain did. Some of the jurors itself, specific knowledge also had of the facts of the case family grief, public had seen the victim’s in their and had heard officials comment on the crime. Defendant and the victim were throughout wide-spread well-known the State and evidence of hostility jurors towards defendant is incontrovertible. Some had guilty. even heard that defendant was protestation by jurors they would not be influenced impartial and could remain presented when with this kind of knowledge simply is generate not sufficient to confidence and II, supra, See Williams 113 N.J. reliability. A.2d (reversing juror’s in part sentence due contention opinion that she had “in a sense” an formed as to defendant’s guilt, spite of her contention impartial). she could remain This Harris, supra, Court, effectively jurors ruled that with knowl- edge prior of a defendant’s similar convictions or bad acts must be cause, struck relaxing only for the rule in that case because the juror involved participate did not in deliberations. The Court’s loyal failure to remain established Harris is here to the rule so, insupportable. doing ignores “gross the Court preju- jurors dice that visited on knowledge [is] [a] defendant” when with convictions, prior acts, his similar alleged or even bad are empaneled.
B. the trial court’s voir dire Even were I to believe that adequate eventually in that it proclamation resulted in a from each juror that he or she full capacity impartial had the to remain instructions, follow trial court’s I maintain that defendant’s conviction must be reversed and his Although sentence vacated.
677 ability lay prior to aside they have the jurors may well believe so, realistically simply we cannot knowledge, fully and intend to do ability accomplish this jurors have the expect or trust that all inflammatory evidence at overwhelmingly face of the kind of 386-87, Brunson, 625 A.2d v. 132 N.J. here. See State issue (1993) Roselle L. (citing jury study by Professors Wissler 1085 “prior-conviction concluding that admission Michael J. Saks predisposi- not affect the limiting instruction] did evidence [with defendants,” credibility of criminal but jurors doubt the tion of guilt, “the jurors’ dispositions on with did affect that evidence prior crime was the resulting when the highest conviction rate offense”). Stein, dissenting, states charged Justice as the same re- prior convictions jurors’ knowledge of defendant’s trial court did because the of defendant’s sentence quires vacation knowledge of jurors disregard their specifically instruct the not 641, A.2d post at See priors their deliberations. defendant’s (Stein, J., proposed think that the dissenting). I do not court, had the instruction, trial would have if undertaken instruction juror prejudice. The capacity to block out prophylactic tainting delibera- prejudice by magnified that might have even defendant’s jurors suspicion had no who tions of the two Nevertheless, agree I with Justice Stein background. criminal trial penalty a new vacated and sentence must be that defendant’s moreover, of his believe, logic import that the I conducted. that we remedy. I conclude an additional reasoning demands conviction, overwhelm- despite the must also reverse (Stein, J., at 123 737 A.2d guilt. id. at ing evidence of Cf. capital affirming defendant’s (joining majority opinion dissenting) conviction). profound fundamental and The error is so murder judicial trial and constitutional the essence of a fair goes that it review.
1. by a rendered sentence requires that a defendant’s Our case law prior similar knowledge of a defendant’s jury with penalty-phase vacated, of the regardless of the extensiveness must be convictions they remain could jurors’ contentions and the voir dire impartial. required This Court has all but a dual two-tiered prosecution for the of cases in which the offers State evidence of a prior prove aggravating murder to of an existence factor pursuant penalty Legislature to the death statute. The has cause, explicitly provided good may discharge that “for the court guilt-phase] jury [penalty] and conduct proceeding [the before jury empaneled purpose proceeding.” for the *132 N.J.S.A. 2C:11-3(c)(l). (c)(1) IV, applied Biegenwald This Court Section supra, in which the prior State submitted to the court the murder factor, aggravating holding: recognize finding [W]e is entitled to voir dire potential that our that defendant c(4)(a)
jurors blinding on the possible factor most will impact likely require two-jury for all eases which the State seeks to system capital that factor. prove N.J. at [126 172.] 594 44, A.2d 43 -
The Court prejudice was concerned about the that would result dire, process from the implying of voir that no ques- amount of tioning by jurors’ ability the trial court to determine a to remain impartial prior when faced with murder evidence would suffice.12
Although
exceptions
the Court has allowed for
to the dual
Harris,
requirement,
supra,
see
[Ibid,
(citing
(1991)).]
State v. Erazo,
126 N.J.
supra,
112, 132-33,
A.2d 232
acknowledged
The Court in Harris
knowledge
prior
that
of similar
crimes,
abuse,
convictions of distinctive
such as child sexual
is
improperly during
bound to be used
deliberations
if
even
instruc-
12Although the Court ruled that the trial court had no
sua
sponte
responsibility
juror
to strike for cause one
who had an awareness
that
the defendant was
ground
juror
murder,
involved in more than one
it ruled so on the
that
did
knowledge
not seem to have
facts that would not have been
any
presented
during
Biegenwald
sentencing
IV,
of the trial.
N.J.
at
supra,
phase
I
with
deliberations,
practical
that no
difference
jury’s
to influence on a
convictions as evidence
prior
admission of
between the
exists
sources
knowledge
the convictions from
jurors’
trial and the
642-43,
at 124-25
post at
737 A.2d
the trial. See
external to
States,
J.,
360 U.S.
(Stein,
dissenting) (citing Marshall v. United
(1959)).
1250, 1252
1171, 1173,
310, 312-13,
3 L.Ed.2d
79 S.Ct.
outside the
information learned
damage wrought by prejudicial
resulting
indelible than
may
even more extensive and
trial
be
trial,
At
evidence is received
at trial.
from evidence admitted
permissible use
the trial
simultaneously
limitations on its
with
require a
such evidence but
guilt phase,
we allow
court.
jurors spe-
limiting
explaining to the
contemporaneous
instruction
prior convictions
they may not use evidence of similar
cifically that
to commit such crimes.
propensity
has a
to conclude the defendant
integrated into
not been
if the evidence has
penalty phase,
In the
jury may not
an instruction that
testimony,
require
we
based,
here,
as
jurors’ knowledge is
consider the evidence. When
*133
trial,
read
on media accounts
at
but
not on evidence admitted
limiting
a
trial,
required to administer
court is not
the
before
priors
knowledge of defendant’s
jury that their
instruction to the
information
because the
in their deliberations
play
cannot
a role
believes
into evidence. Justice Stein
not
admitted
has
been
guilt
and
anyway in both
have done so
the trial court should
(Stein,
645, 649,
at
129
at
737 A.2d
See id.
penalty phases.13
13
trial court never had
opportunity
asserts that
Justice Stein
did not
testily,
because defendant
evidence was admissible
consider
if the
the evidence—
making
have admitted
if the trial court would
us unsure
thereby
at 645-
not have. See
although
would
post
we can surmise that it undoubtedly
slightly
(Stein,
concurring).
is
characterization
J.,
That
46,
J., dissenting). spite I am not requirement so sure. of our limiting instructions must be administered when other crimes admitted, properly skeptical evidence is the Court has remained Brunson, certain cases. See value of these instructions supra, 385-86, N.J. importantly, A.2d 1085. More had jurors trial disregard any knowledge court instructed the record, they might prior have had of defendant’s I believe only instruction suspicions would have served to arouse the jurors knowledge two no inducing who had of defendant’s record — them, perhaps, to make the “forbidden connection” at the most moment, just Thus, limiting critical before deliberations. such a impractical, likely instruction would have been prejudicial mischievous. Defense request surely counsel’s failure to one fair, forced, represents if not tactical decision based on the overwhelming potential of an prejudice instruction to escalate the against defendant.
Nevertheless,
agree
I
Judge
only remedy
with
Stein that the
available to the
penalty
Court is to remand for a new
trial
143,93214
expectation
Camden with the
that the extra
households
receiving
newspapers
not
the Trenton
will allow for the selection
impartial jury.
of an
If
prove impossible,
this endeavor were as
may
it
after
resurgence
press
the inevitable tidal
coverage that
trigger,
may
retrial would
not be sentenced to death.
Martini,
State v.
248, 290,
(1999)
160 N.J.
2.
a.
defendant, I
against
overwhelming
guilt
of
evidence
Despite the
Existing
as well.
must be reversed
contend that his conviction
result,
of
special nature
as does the
law dictates such
case
This Court has held
prior
crime and
convictions.
defendant’s
impartiality
any
the ultimate
a voir dire leaves
doubt as to
when
is
penalty-phase verdicts
jury,
guilt-and
of the
reversal of both
II,
supra, 113 N.J.
After Kanka was assaulted and her parents actively Megan’s led the movement to enact Law as an prevent effort to deter and similar sex crimes the future. That law, collectively Law, N.J.S.A. Registration referred to as The Community 2C:7-1 to and the Notification Laws N.J.S.A. 2C:7- 6 to was enacted on specifically October 1994. The Law offenders, targets they released sex whether murdered their victims or not. The distinction seems to be rooted in the notion nature, only that sex offenders are not vicious but are also dangerous prone assumption to reoffend when released. That supported by is press coverage surrounding Megan’s Law effort, legislative history as well as in the of the Law. On statewide levels, officials, public commentators, and nationwide and the repeatedly media documented the recidivist tendencies of sex offenders. The Trentonian entitled, printed story “Experts Say Nearly Impossible Mary Child Molesters Mooney, to Cure.” M. Trentonian, 2, 1994, The Aug. story at 7. Another carried the headline, May Hiding “Stats Show There Be: Every Molester on Block,” documenting nearly forty percent of sex offenders will Trentonian, commit The Wallgore, another crime. Mark A. Aug. 4, 1994, at 1-3. The Trenton Times published articles, similar noting importance having way notify people some to when a “dangerous them, predator” sexual among alluding is Kanka, Megan murdered, brutally “who allegedly by [was] [a] neighbor[] history whose of sex crimes was unknown to [her] eommunitfy].” Editorial, Defending Law, Megan’s Trenton Times, 5, 1995, Throughout Jan. at campaign pass A16. Law, Megan’s Mayor Hamilton Rafferty expressed Jack the fol- lowing view: I know this is an old but these like Jesse cry, should not be people Timmendequas just allowed on the street. should be incarcerated They or executed ... You can’t
fool with them. Aug. Living 1, 1994, The Door?, Trentonian, Who’s Next [Raymond Hennessey, 10.] stated, Timmendequas Assemblyman “People like Jesse Holzapfel Neese, Lawmakers urges.” dark Dave can never overcome their Sickos, Trentonian, 16,1994, Aug. at 4. pledge Against Action helping case Representative Zimmer referred *136 adopt legislation requiring that states through the federal push Kladko, Megan’s Legacy, Brian notification laws.15 Unfinished time, Press, 23, 1997, At same Asbury at 14. Park June Assembly, Hayatain special called a Garabed leader of the State through of anti-crime Legislature push a set session of the measures, for including community notification laws sex offenders. Ibid. 1994, Legislature Megan’s in passage of Law
With theory who commits one sex basically that a defendant codified very theory that the likely to commit another —the offense is guilt-phase invoking during its deliberations. prohibited is from Legisla- Registration [ ] Laws the conclusion by and Notification represent who have or successfully, apparently ture that those convicted sex offenders adjusted integrated their lives so as communities, into their been successfully, threatening neighborhood, ... that the else in the no more than anyone appear concerning them, information them, of some of and the statistical characteristics integration, and risk, is a realistic it such reoffense make clear despite against knowledge it. a realistic of their presence protection 367.] at 662A.2d [Doe, N.J. supra, Law, Doe, nature of the supra, detailed the remedial the Court tendencies of documenting the recidivist citing numerous studies offenders, following statement: summary made the and sex Concerning concerned, as far as is ... there is no facts, society the basic dispute: among of all the most abhorrent covered the law are sex offenses of the kind by high to other is recidivism rate of sex offenders offenses; compared the relative exhibiting repetitive compulsive treatment success of sex offenders offenders; initial offense and re-offense time between the is and the low; span characteristics long. can be 367.]
[Id. at 15 n.
662A.2d
Zimmer
that he had seen
speak
stated in voir dire
Representative
Juror C.B.
Megan’s
Although many jurors express of selected here did not knowledge Megan’s of the details of Law or defendant’s case when dire, they voir jurors questioned all knew about the Law. The news, friends, heard about it on the discussed it or with read about That, papers. it in suspicion when combined with the inevitable or previously belief that defendant had been convicted as a sex offender, required and forceful voir dire than was in-depth a more by questioning regarding administered the trial court. Illustrative Megan’s voir dire juror Law the trial court is included in the of S.D., viz: Megan’s Law is talked about in
Q: this, indicate heard you you you’ve have — Megan’s understanding again Law. Your is what, words? your given neighbor- A: Notification can be if a sex offender moves into the people neighborhood. hood or is their Do have about it? Q: you any opinions agree A: I with it. origins Megan’s Are
Q: aware how it came to be? you Law, thought Megan A: I had it was as result of what to her always Kanka, happened going and, what’s on here. basically, you know, And do believe the defendant has connection with all of Q: you any that, *137 therefore? something A: I feel that it had to do with the law came about. why addition, questioning explored possibility the of the court the juror that disregard knowledge the could her prior of defendant’s offenses, viz: knowledge, through, [W]ould as think it
Q: your of the defendant and the you aof criminal potential record, or belief that he has a criminal your suspicion thinking enter into if record, are involved in the your you of this penalty phase trial? just anything A: I would base the on this trial not in penalty phase alone, the past. things brought there Q: Well, be in the that are if may but a matter of a past up, something brought defendant’s record is not that’s could exclude that up, you thinking decision-making from and not your base of on that any your suspicion or belief that have? you A: Yes. Do have
Q: you reservation about to do that? any your ability A: No. dire, view, deficiency my voir in is the Court’s failure this i.e., Law, inquire why juror agrees Megan’s with what
to
into
juror’s
requires
such a law. The
it is about sex offenders
light
of
disregard
prior
could
record
belief
she
grossly inadequate
apparent feelings
Megan’s
about
Law is
her
underpinning Megan’s
gauge
impartiality.
of her
Because
offenders,
likely
assumption that sex
are more
Law is the
offenders,
singularly important to find
than other
it was
recidivate
jurors
danger
and some
from
whether the
of recidivism
out
behave,
approval
their
notion about how sex offenders
influenced
jurors may
dispel
this concern
of the Law.
have been able
Some
likely
they
were no more
by stating that
believed sex offenders
criminals,
that because sex
types
recidivate than other
but
crimes it was
egregious
so much more
than other
offenses were
re-offense,
protect against
possibility
important
more
hand,
may
likelihood.
the other
some
have
however slim the
On
something distinctive about
expressed strong belief that there was
likely
were
to re-offend more
sex offenders —that sex offenders
sentiment,
with a
strength of that
combined
often than not. The
a sex offense once
suspicion that defendant had been convicted of
before,
likely
created the kind of
perhaps twice
would
have
juror with the best intentions of
“blinding impact” that even a
Biegen-
ignore.16 See
remaining impartial would not be able to
IV,
43-44,
supra, 126
Although in some jurors they thought of feelings about what complex more from why Law, any of the the court never tried to determine Megan’s The court had the jurors thought might Law be beneficial. following exchange with Juror B.: if might used, have been even of defendant’s record Not only suspicion guilty, determining juror it also that defendant may
subconsciously, by significant have concluded Jurors may had a on the phase. have impact penalty *138 from rehabilitation and therefore is to benefit that a sex offender unlikely repeat grave that were he ever to because of the risk be sentenced to death should again, offense; or, emerge another alternatively, he would commit from prison keeping unsalvageable alive, even in and not worth prison. because he is knowledge general Megan’s What’s Law? ...
Q: your understanding A: is that a convicted —a convicted sex that, know, Okay. My you neighborhood, his must or wherever he offender, release, notify upon lives —his residence must be made known to the public. being understanding view of that? That how do it, What’s Q: your your you feel it? about A: I have mixed emotion. How do mean?
Q: you trying do, A: Insofar as I could understand what the law is to but the same if token, has committed a and has their debt to I somebody crime, paid society, if with his to don’t know should interfere as where to live. 17 people privacy Law, Although juror expressed ambivalence about his privacy rights may any way concern for the offender’s not in an be likely indication that he does not believe sex offenders are fact that B. recidivate. The Juror stated that he “could under- trying generally stand what the law is to do” indicates he believes purpose, the Law has a valid but we cannot surmise his from purpose strongly words what he believes that to be or how he jurors Repeatedly, previ- feels. who believed defendant had been ously they agreed as a convicted sex offender stated that with the it, feelings they pressed Law or had mixed about but were never explain to disclose and their reasons.
The voir dire of Juror S. is
particularly problematic:
feeling
agree, disagree?
And what is
about the law:
Q:
your
agree
A:
I’d have to
I
with it.
overall,
say,
anything
feelings
Megan’s
might
about
about
Law that
or
Q: Okay,
your
impact
judge
guilt
interfere with
this
or
your
case,
innocence of the
ability
charged
in the
that I
indictment
outlined to you?
listening
A:
I don’t —I don’t think so. I don’t think there would
abe
problem
deciding
goes.
the evidence and
which
itway
obligation
that is
Q: Well,
decide the case on the evidence that is adduced
your
brought
gave
before
in the
trial,
course of the
but
that one some
you
you
thinking
Iwhen asked
What is
what is
pause
you.
this
your hesitancy,
your
area?
17Juror B. indicated on his
that he assumed defendant had a
questionnaire
though
juror
nature,
conviction of
sexual
was not sure if it was a
prior
charge or
an accusation.
simply
*139
just trying
I’m
to
in that
where
come down
situation,
A:
put myself
you actually
big
to it
have to make a
decision.
and you
try
get
probed
The court
Juror S. to
at the nature of his
juror
hesitancy,
yet
had not
been asked about defendant’s
but
Therefore,
history, except
questionnaire.
prior criminal
on the
what,
likely
exactly,
was
uncertain about
the court was
Juror S.
words,
initially
if
it
asking.
put
Even
unable to
into
Juror S. was
ability
impartial. That should have
unsure as to his
to remain
warning signal
grounds
trial court and
for dismissal.
been a
(“Once
II,
it
supra,
Even the voir dire offender, prior as a sex Jurors defendant had a conviction believe P., light trial court’s cause for concern. D. and evokes “gross prejudice” would “visited on the defen- comment that be jurors in of the trial or one of the the middle dant” should Megan’s between Law and make the connection deliberations court, telling equally it was prior record without P. Megan’s on Law. Juror necessary explore their views case, instigated by defendant’s Megan’s Law was recognized that existed between the case suspected D. that a connection and Juror Law, expressed or the next neither had reached and the but history prior criminal as defendant had logical conclusion—that they may have done so at some danger a sex offender. trial, however, real, way very we have no is point during the D. was not knowing danger if came to fruition. Juror expressed in no Megan’s Law. Juror P. asked how he felt about Law, Megan’s was not agreed terms that she with but uncertain hesitancy ability her to be why. expressed P. about asked Juror juror judge fairly.” If impartial, stating “I think I could either point during the trial that defendant must have reasoned at some catalyst he had been the for prior sex offense conviction because *140 Law, endorsing Megan’s Law would Megan’s their motivations for have become critical. adequately by the trial
Finally, Juror A.C. was not screened B., expressed feelings mixed about court. Like Juror Juror A.C. Law, Megan’s trig- that he believed defendant’s case and stated likely that it that gered the Law. He also stated he believed previously defendant had been convicted as sex offender. Juror agreed Megan’s that he with Law it A.C. stated that to the extent love, know, be, you community you was he “would because know, safe[,]” suggests required which his belief that the Law is likely are because sex offenders re-offend.18 by highlights potential may Another statement Juror A.C. that the for bias significance phase. questioned by penalty have had added in the When prosecutor, beyond assistant Juror A.C. indicated that he felt serial killers were rehabilitation: Okay. you changed your opinion penalty Q: I think have about the death you people capable being because feel that some are not of rehabilitat- ed? Right. A: what, Okay. you person, gives Q: What —when look at a situation or a what you opinion person capable being that this is not of rehabilitated person being capable and that is rehabilitated? I, at, know, killer, mean, you guy A: If if I looked a serial I where is this mean, going, really hope man? I I believe there's no for someone like that. Okay. Q: real, just beyond hope A: I think he's situation. juror's tendency
That discussion underscores to condemn someone who repeatedly. light has offended When viewed in of the fact that defense counsel juror appeared sleeping dozing during later alerted the Court that the to be or penalty phase Krych testifying while defense witness Carol was about history, weight: defendant's social this concern carries added Had Juror A.C. already hope written off defendant as for someone whom there was no penalty began? rehabilitation the time the trial court, many conducting thorough voir dire in trial while jurors’ manage the reasons ways, did not to determine behind Law, opportunity to Megan’s and therefore lost the support for they completely fully extent to which would be able assess the prior criminal disregard suspicions their that defendant had a IV, concerns, expressed Biegenwald record. This Court’s 594 A.2d members cannot be swpra, 126 N.J. at instances, they impartial in all even when counted on to remain can, they guide should its decision this case. have stated that jurors’ promises, expressed tentatively spite In some more others, they judge only on the evidence than could trial, prejudice simply great too presented at the risk of here to overlook. court, requested, might permitted if have
Although the trial jurors on the foundation of question defense counsel to further Law,19 Megan’s pursue failure to this feelings their about counsel’s determinative. questioning in these circumstances cannot be line IV, Biegenwald supra, the stressed that defense coun- Court inadequate compensate for the trial court’s voir sel’s failure to *141 dispositive: not be dire could objection acknowledge However, defense counsel. whatever We the of paucity vigor might counsel in no and one ascribe to defense way lack of zealousness a fair and our to ensure that defendant is sentenced by impartial diminishes duty
jury.... [Id. at 130.] 524 A.2d 42, case, responsibility to assure prosecution capital of a the In the court, impartial jury is that of the and it the selection of a fair and delegable. is not
B. Coleman, 1541, court stressed that a supra, 778 F.2d at the applied penalty phase to the analysis should not be harmless error sentence is to be capital trial. The determination that a death of a limited the voir dire defendant that the trial court There is no claim by significant any way. subjective intrinsically inherently and therefore
imposed is
and
any
that deathworthiness as the basis for the
defies
conclusion
“overwhelming
is not
on
evidence.”
sentence of death is or
based
or, in this
prior
conviction is similar
When the
to—
case, exactly
for
is
the same as—the crime
which
it,
tried,
jury
potential
aware
for
being
and the
becomes
of
required
have
admissible evi-
prejudice cannot be doubted. We
prior
guilt phase
“sanitized” in the
dence of
similar crimes
be
jury
unacceptable
and
risk that
will
because of the real
tending
as
to demonstrate the defendant’s
interpret
that evidence
Brunson, supra,
propensity to commit such crimes.
with a
risk of
about
effectiveness
they express skepticism
an instruction to the
to limit its use of the evidence to an assessment of
defendant’s credibility.
[Id.
1085.]
at
625 A.2d
“
theory
explosive
‘The
of ‘limited use’ under which such
evidence
put
correspond
is
fails to
actual
before
effect
evidence even
the minds of the most sober and conscientious
”
Uviller,
jurors.’
(quoting
Id. at
The Court constructed its rule for
with like crimes in
recognition
limiting
inadequate
the concern
instructions are
impartial comparative
to ensure fair
evaluation of those
prior
crimes. It held that when a
conviction is the same or similar
charge
jury, only
degree
to the
before the
of the crime and the
date,
nature,
may
jury.
not the
of the offense
be revealed to the
*142
Brunson,
391,
supra,
at
625 A.2d
132 N.J.
1085. The Court then
prior
reversed Brunson’s conviction because the
of
evidence
his
offenses,
drug
by
record of
similar to the offense under review the
Court,
Part of the with these issues is that the this ease rampant press coverage that characterized the kind may Although trial court have not obvious. it is true that the are jury by empaneling a from problem able to avoid some of the been Hunterdon, by attempting to do instead of and erred not Camden so, widespread Megan’s coverage Law was so dimin- the fact that empaneling a from strength argument of the that ishes At in significant made a difference. least Camden would have Camden, however, have tried defendant would been pool representing a cross-section of the communi- selected from a ty- solution, reluctance, difficulty finding in and the spite of the singular recognize defendant’s habitual “nature” —the
perhaps, eyes more detestable reason that makes defendant trial, hesitancy him to a new public the one factor entitles —as paraly- necessary remedy not evolve into doubt or over the should required. question should be no doing sis in what is There must be vacated and his these circumstances defendant’s sentence conviction reversed.
692
IV
engaged
prosecutorial
also claims that the State
Defendant
throughout
guilt
penalty phases.
and
The Court
misconduct
imper-
acknowledges
prosecution’s
tactics were
some
missible,
egregious
was not “so
as to
but concludes the misconduct
”
596,
(quoting
A
at 99
deny
a fair trial.’ Ante at
737 .2d
defendant
(1991)).
Moore,
420, 462,
I
122
Prosecuting attorneys
leeway in
are “afforded considerable
II,
making opening statements and summations.”
su-
Williams
447,
trial,
pra,
they
at
A.2d 1172. At the end of
are
113 N.J.
“
”
up
‘graphically
forcefully.’
allowed to sum the State’s case
(citation omitted).
Feaster,
58,
supra,
Nevertheless,
malady
prosecutorial misconduct is a chronic
II,
justice system.
supra,
the criminal
See Williams
Repeated
prosecutorial misconduct
intended to
and extended
impermissible impres-
improper
inferences and reinforce
induce
of
particularly prejudicial, and will overcome evidence
sions are
See,
Frost,
76, 87-88,
e.g., State v.
158 N.J.
“[S]crupulous[ ] review” is in contexts where the State priety especially is called for 13, 40, Biegenwald, v. 106 N.J. seeking penalty. the death State “ (1987). uniquely is a harsh sanc- ‘Because death 524 A.2d tion, necessity readily prejudice will more find this Court of prosecutorial capital in a case than resulting from misconduct ” Rose, 454, 524, 112 N.J. criminal matters...’ State v. other (1988) where cumulative (reversing death sentence A.2d 1058 deprived defen- prosecutor’s penalty phase statements effect of trial) Ramseur, supra, right (quoting fair 106 N.J. dant of 188). 324, 524A.2d charged particularly sensitive: He was
Defendant’s case is thus only young girl, capitally, assault of a but also not with the sexual for her murder.
B. trial, phase overwhelming theme of the guilt In the degradation character. That prosecution was the of defendant’s accompanied by sympathy a simultaneous effort to evoke for highly prejudicial testimony through presentation the victim *145 arguments and often irrelevant to the central issue of defendant’s guilt. prosecution continually referred to defendant’s lack of The crime; following portrayed it as emotion or remorse sexually specifically by alluding prior perverted, to defendant’s light jurors’ knowledge convictions as a sex offender. of the offenses, prior prejudice and awareness of defendant’s sexual undoubtedly from is that redounded this kind misconduct Finally, stage penalty by for the trial the State set the obvious. emotionless, cold, continuously depicting void of defendant as and remorse.
1. guilt-phase by the The State’s misconduct is best illustrated closing argument, together prosecutor’s assistant which drew throughout to the trial. After the Court dissects themes alluded tangled prosecutorial strands of misconduct and desiccates case, enveloped many prosecution’s improprieties, this of the isolation, egregious. impro- appear considered in do not Those however, prieties, in light must be considered as interrelated and highly inflammatory improper closing. of the State’s and Re- context, prosecutorial in that viewed defendant’s claim excessive clearly prevails. misconduct egregious portions closing, many prosecutor’s
The most were, notably, majority’s opinion, which omitted from the follow: man What kind of could do such awful deeds? What kind of man could commit such evil acts? The kind of man who could a child’s and cavalierly body dump executing a could, make his next WAWA. The kind of man who after her stop daughter, look within flinch. minutes, Maureen Kanka and not eye, unmitigated gall to kind of man who had the offer to hand out fliers for the child just whose life he had snuffed out. The kind of man the course of two who, over, brutalizing could talk about the and murder and the of a child and never days, rape Megan’s show a shred of emotion. The kind of man who could talk about death hurt. man like the and blame her because his hand The kind of defendant. The defendant killed to his own self interest. He he claims to killed, protect Megan get Megan himself, because he didn’t want to loose. He didn’t want protect rage. him. kill in kill in kill to tell on He didn’t He didn’t He didn’t panic. killing calculating chilling in accident. This was so cold and so that it is extreme. Megan He killed because she a threat to him. And as a he had to threat, posed bug. throughout exterminate her like would on a He this entire you step proved investigation anything anything that he himself. He would do would do protect lie, deceive, in his own self interest. He he would connive, proved manipulate, thought even kill if he it would him. help Megan’s it in the her in the weeds. He box and body, put toy dumped scooped up he do next? He went to a WAWA You have heard statement after What did gave regarding his actions. You have heard words out of his statement he reflection, concern, mouth about his activities. Did hear one word about you Megan? just committed some of about what he had done He had introspection being a human can commit. Did hear in those the most heinous acts you her his concern was statements one word of remorse? He dumped body, only get cigarettes get to a and a WAWA newspaper. *146 and that’s where he street, After the he home. He crossed the proceeded WAWA just daughter. Maureen is out, encountered Maureen Kanka. He had her dumped looking missing girl. distraught, little The was able to stand for her defendant [sic that mother in the and not flinch. there, ], looked eye Megan might against but the alive, that still be Pukenas hope Detective hoped A was all that was dead. little blue shirt indeed, knew better. And she bags insects. her covered with head, her over her wore, side, body she on plastic tragic sight it will be haunted that who saw It was a so and perverse every person photograph as of her body we will be haunted well. Just forever. And disturbing one of you, in so for each every outlined the weeds was deeply get an who would this wasn’t a movie. This wasn’t actress TV, because this wasn’t breathing child. And this live, scene was done. This had been real when the up was a real death at his hands. of the crime was also prosecutor’s provocative recreation graphic and extreme: long until [sic] variables, with all the she couldn’t how say Dr. Ahmad told you Megan minutes, It could have two three minutes, became unconscious. been struggle longer, said that the himself, statement, shorter. But the defendant his five minutes. Five minutes,
in the door with the belt around her neck lasted Megan, being You can almost the belt around her neck. terror, pain, wrapped gasping air. hear her for long know how her conscious terror We will know —we We will never persisted. long how it took until darkness overtook her. We will know only will never know face on this earth was the face of the man committed to her that the last she saw long Megan. it an for We not was, may destruction. However it eternity it events, know the exact but we do know whatever sequence, sequence disturbing, unsettling, so so that it horrific, was so so permeates your repulsive, soul. very bags Megan’s You over head. worst your have seen pictures nightmares, ever think would see such evidence of callousness? In did you you darkest did ever dream would see such Is moments, you you inhumanity? your alive on the face of the who doesn’t know the effect of there adult any planet bags putting his intent have been more over someone’s head? Could any plastic intending? there what he was Could be crystalline? any question finale, then, prosecutor And offered this after which defendant objected: jury, image violation in the Is more
Members of the sexual there park. any all that he Is there act more than that one? After had any despicable? depraved bags done to that and he had to violate her one more time. He didn’t child, rip finger vagina. in her there off her head to save her. He stuck his Can try of his intent? any question *147 He and then he drives off. This was a man who wanted to her, kill, dumps knowingly Mil Mil, intended to meant to chose to and did or Idll, Mil, purposely by his own conduct. beings, unmitigated It is hard for most of as human to understand the us, evil that beings, this case It is of as human us, hard for most to understand represented. that adult could MU It a chUd. would have been any intentionally beyond just if he had acts and let Uve. But if committed sexual her he reprehensible damaged, had done she would have been she would have been but she that, hurt, [sic] would have been aUve. But she chose not to do that. He chose to take the gigantic that raised these acts from the horrific to the step catastrophic. calculating It is the nature of these acts that senselessness, cold, brutaUty, appaUing, is so and so tells his intent. clearly you just This was not a man who MUed. This was a man who kiUedwithout a shred A of emotion. man who MUedwithout a scintiUa of concern. You heard his statements over the course of two Did ever once hear in of days. you any those statements that it was an accident? Did ever once hear him you say I statements, of those didn’t mean this to Did ever any happen? you anything once hear him in of those I would do if I could statements, say any change anything the results? You because he didn’t ever Uke didn’t, say that. anything him statements, once, In those did even hear mention about you once, Megan laugh Megan for what she or concern had suffered? would never and never again, Megan smUe and he blamed her for the wound on his hand. was on a morgue and he wanted a band-aid. table, jury, images of there from this ease that wiU with all us. Members are Uve of things images AUof us who have seen and heal’d in this these wiU with case, Uve us just forever. Some of them come from the that have heard from you descriptions so that offensive, acts so shock our coUective testimony, perverse, they images things [sic] conscience. Other wiUcome to from normal you every day sinister, have become different. suddenly Something The belt. most of men wear You wiU never be able to you every day. again wearing look at a belt and think of it as a of You wiUnow only piece apparel. something being it as an instrument of of destruction, forever see capable wrapped something maMng grooves being in a neck, neck, around a chüd’s of ehUd’s capable something strangle, used as a used to to annihUate. leash, choke, destroy, image A box. Before this I am sure that of a box was trial, toy toy conjured something brought great joy. It chñdhood up happiness, laughter, again aU of the treasures that would be found inside. You wUlnever think elnldhood Instead, be able to look at a box and treasures. toy you Megan. longer wiU in mind’s It is no a box. It was a coffin. see your eye toy Megan’s image I battered inside. Will that ever fade? don’t crumpled, body think so. a case, bucolic, A Before this would think of as that was you park place park. enjoy go life, A where families would where children idyllic, peaceful. place images it It was a where the Now, could run and will invoke death. place play. Megan’s his acts. now defiled body, despicable chose to dump place garbage. Megan, like so much cast aside Something bags. ever be able to most of us see or use Will every day. you Plastic bag again horror? You have seen the and not think of the ultimate look at a plastic bags Megan’s the defendant. in those on by head encased particular put pictures *148 bag guaranteeing bags, tightly that death would her each neck, ties around Those bag her dead. a the defendant that he wanted follow. Each declaration by image playing dog. that does more to evoke childhood A child with a Is there any brings innocence, to mind all that childhood is, happiness, than that one? It laughter, trust— knowing might Megan have been. died without ever why. You will think what Megan thinking would never have know that had to be and she why, why, You Megan in did. In in terror, No one on earth deserves to die as pain, known. anguish. No one on earth deserves to die way. Megan man no who knew no who decency, died at the hands of a who knew mercy, outrage. are not words to the There are no showed no There humanity. express no words that can the that can the horror. There are express words express disdain. begin justice, can to and that one word must come There is one word that do only guilty. from And that word is you. presentation, vivid the court instructed the with this Confronted distinguish guilt-phase simply deliberations to “emo- prior tendency phrases or that have a to inflame from [ ] tional words language,” urging disregard former. Ante descriptive them to the at at 737 A.2d 93.
a.
throughout
prosecution,
most
theme of the
used
the
vivid
in
prominently
closing,
most
was the
trial and illustrated
degradation
prosecution,
and dehumanization of defendant. The
jurors’
prior
awareness of defendant’s
convic-
well attuned
offender,
many ways
alluded in
to those convictions.
tions as
sex
pervert,
prosecu-
portraying
In addition to
defendant as a sex
jury with the overall sense that
attempted
tion also
to leave the
sleazy,
pariah
disgusting
was
to be avoided.
statement,
opening
prosecutor
In
described defendant’s
thoughts
regard
Megan
longstanding
interest
as
and his
with
contrast,
“anything
pure.”
prosecutor
remarked
her as
but
Megan,
as she “walked into that house ...
couldn’t know
the defendant.” See id.
about
Q: your just get A: intentions were to feel her and kiss her and her not to My up try anything. hurting I didn’t want to hurt her but I knew I was say physically, doing. her what I was mentally by What do mean feel her Q: you by up? legs
A: Rub hands and down her and feel her butt. I learned that my up my younger girls main attraction to was the softness of their skin. Megan? What attracted towards Q: you during sitting
A: A lot of times the summer she would be on the curb across from house on the curb or the street. She would write with chalk my street. wear with no I underneath, She would loose shorts and would panties legs see this as she had her open. observing Megan’s legs Were aroused actions with her Q: you sexually open *149 had no underwear? I’m and Had no underwear? sorry. got got A: I a reaction from but I on it. it, never hard from get reaction from What would this? Q: you get go
A: I I would and heart would race. would back into the sweaty palms my house. observing Did masturbate when went back into the house after Q: you you Megan? night, magazines A: If I still I I No. felt aroused at would out had and pull would masturbate to them. magazines What do have? Q: type you magazines
A: that come from that I X, the shed work Triple porno recycle seeing became attracted to them. upon magazines pornography? Did involve child Q: any magazines. pornography A: No. were all and I have never seen child They adults, looking I never tried for one. drug during under the or alcohol time Were influence this Q: you any span this incident? A: No. doing? What do think is the reason for what are
Q: you you I am A: The softness of the skin and the hairlessness of the is what body really attracted to. O’Dwyer, prosecutor testimony of Detective During the clothing in front of handling gloves while wore latex clothing. handling victim’s not do so while jury. She did prosecutor objected to this at sidebar. The counsel Defense court allowed the practice, it her normal replied that was practice to continue. as the as a sexual deviant continued portrayal
The of defendant Shaw, who described testimony from Officer prosecutor elicited by if it could have been made portion print, of a as the “small counsel in defendant’s bedroom. Defense person” smaller found court did not strike the objected description, to this but the explain fingerprint testimony. court allowed Shaw to The victim’s, impres- leaving with the match the thus did not young girls in his bedroom previously that defendant had had sion victim. other than the implica- closing crystallized impermissible prosecutor’s
The tion: Sergeant lusting months, for this child for weeks or as he told Stanley He had been getting watching girls months, little for weeks and on He had been Sunday. image appalling feelings It an that is so that it is hard to those for them. is put lusting
into words. He had been after this child. b. inhuman, relentlessly prosecution portrayed defendant as
cold, opening, In the and void of emotion. State’s remorseless seen the victim prosecutor having described how defendant denied Megan if he knew where was: when asked her mother Kanka, that the defendant had this conversation with Maureen At the time point Megan. Yet he was able to had brutalized and murdered he already kidnaped, Megan that child’s mother in the and tell her he hadn’t seen there, stand look eye night. earlier that since *150 disposition prosecutor defendant’s calculated The then described body: of the victim’s chest that [after murder] chest,
And the he realized he ironically—a toy toy had — thought Megan’s would fit converted into a tool box. And he body he had into this chest. toy nicely prosecutor following contrasted demeanor relatively response investigating crime with the emotional officers, needlessly highlighting tragedy of the crime describing the victim’s clothes: got
It until ear ran that all wasn’t out over to the area was they hope extinguished. Megan, lying side, naked, There was on her for a little blue except bags. shirt. Her head covered with It was a difficult and pink plastic sight job in emotional for law enforcement officer but their every park, not ... done had to secure the scene and for further forensics. They body McDonough Detective Pukenas and returned the station. police leading In the after to her the defendant unemotional- car, police body, coldly, Megan described what he had ... done ly added.]
[emphasis trial, object Defendant did not to these statements but now they prejudicial contends that laid the foundation for the themes perversion. of defendant’s lack of emotion and sexual The State continued its assault on defendant’s lack of emotion during prosecutor the examination of several witnesses. The lead police asked Detective Pukenas about defendant’s demeanor in the accompanying car as defendant recounted the murder to the officers: giving in Detective, car, let me ask on the back as he’s this
Q: you, way what narrative of what was his tone of voice? happened, telling A: It a normal tone of voice. He was us what remained He happened. Nothing changed had in his demeanor of his tone was very cooperative. really of voice. telling got in Was there time of this that he emotional? Q: story any point A: No. Objection, Judge.
MR. GREENMAN: Objection
THE overruled. COURT: telling Was there time of this version where his voice Q: any point cracked? A: No. Or wavered?
Q:
A: Never. Did ever see him shed a tear?
Q: you
A: Never once. in the did he at time indicate concern about back, car, any On the
Q: way any Megan? *151 crying. one not A: Not at all. I think he was the only objection. the objected again and the court sustained Defendant jurors, telling gave limiting instruction the The court then emo- disregard regarding last statement defendant’s them to warning, prosecutor contin- Ignoring the court’s tional state. in vein: ued the same that it was an accident? did he ever in the car on the back Detective, way say
Q: A: said that. He never that he didn’t mean to kill her? Did he ever
Q: say that at all. A: He never indicated that he killed her? Did he ever he was
Q: say sorry A: never said that. He he ever words whatsoever that indicated remorse? Did
Q: say any Nothing like that at all. A: control also testified that defendant maintained the same
Pukenas confession, on during in interview room his written and stated “talking during interrogation, defendant was a little redirect any prior than he to that ... not tone of [b]ut bit more had objected Again, remorse.” counsel voice that would indicate disregard objection court told the was sustained. The conclusory statement about defendant’s remorse. the witness’s Sergeant O’Dwyer, prosecutor On direct examination impermissible inquiry into emotional state continued police: time of his first statement to the at the giving During did his tone of voice ever defendant, of this statement Q: change? ma’am. No, A: gave Was there in time when he this statement his voice
Q: any point cracked with emotion? A: never. No, ma’am, during giving of this statement that there was Was there time
Q: any point a catch in his voice as if to indicate an emotional reaction? No, A: none. ma’am, during in time this statement that he had to Detective, was there
Q: any point himself? stop compose No, ma’am, A: never any point. thoughts? At in time have to to collect his did he
Q: any point stop Objection, Judge. MR. GREENMAN: objection THE is COUET: sustained. during there in time when he cried this statement? Was
Q: any point No, A: ma’am. regretted Megan? At did he ever he what he did to time,
Q: any point say *152 A: never. No, And when asked him how he and his I am Detective, felt, was,
Q: you response trying not to that and answer? cry question —remember A: I ma’am. Yes, do, Megan, trying Do know if he was not to because he had killed or
Q: ay you caught? because he had been Objection, ME. GEEENMAN: Honor. your Objection disregard gentle- that, THE sustained. Please ladies and COUET: men. Ms. there was no reason for that whatsoever. Flicker, question Do know he as he did? Q: you why responded Objection, I witness, ME. Honor. An this GEEENMAN: your interpretation object to decide. to. That’s toup something THE if further was said. There was some COUET: Only inquiry. something If further said. it’s overruled to that extent. there was So anything there further said? Was Q:
A: ma’am. No, O’Dwyer prosecutor then asked Detective to read defen- so, jury. doing down dant’s statement to the the witness broke him take a break. Several of the in tears and the court allowed testimony. testifying emotional De- other officers also rendered statement, objected O’Dwyer’s reading fense counsel delivery The trial court claiming that the emotional was “farce.” testimony, allowed the nevertheless. Stanley regarding interrogation his
Sergeant Charles testified immediately following Dr. Askin’s examination of defendant Stanley prosecution asked hand wound. The following questions: something beginning with the else at the interview your did Now, happen
Q: defendant? and the defendant’s hand defendant, Dr. Askin’s examination of the A: Yes. After taking photographs, had been for the purpose was apparently, manipulated bothering complaining and he also him, he was that the wound was and that blaming Megan inflicting for that wound him. mentioned —he was also upon the hand? there further mention of Was Q: any being again, and, his hand hurt he felt A: Yes. He continued to about complain injury. Megan for that and he blamed her responsible, Sergeant, during on that did he at afternoon, this with the defendant Q: process Megan? regretted time that he what he had done any say A: No. it was an Did he ever accident?
Q: say No, A: he didn’t. Did he ever that he was
Q: say sorry?
A: No. he ever show emotion? Did
Q: any being he was a little when, A: The emotion that he ever was when only displayed Megan [sic] he was had inflicted about his hand about wound, upset upset grievously him. But even that was—he wasn’t about it, wound upon *153 upset complaining he was about it. but him of emotion when he talked Did see demonstrate Q: you physically any type gave about it —when he the statement? A: No. objected objection
Defense counsel and the was sustained.
c. Finally, improperly played on of the State the emotions victim, jurors constantly referring by to the both death and in prosecution emphasized life. The the victim’s innocence and naive defendant, gruesome aspects trust of as well as the more of her body. prosecutor began examination of her The this death and improper opening, referring Megan entering tactic in her puppy.” ] defendant’s house with “her head filled with vision of a [ jaw Dr. Askin testified that he had removed the victim’s lower jaw during autopsy. prosecutor referred to the removal times, several and induced Dr. Askin to discuss it on direct. That sidebar, testimony prompted the court to call counsel to where he court, however, prosecutor.20 The did not ad reprimanded the jury. instruction to the The theme of the minister curative prevalent during the summation. victim’s innocence was State’s 580-85, supra at 89-92. See at 737A.2d
2. “[ajfter carefully examining that the record and The Court holds improper, recognizing prosecutor’s of the remarks were some evidence, fully weight satisfied ‘that it was the of the we are himself, damning statements uttered particularly prosecu capital murder conviction rather than the that led to this comments____’” at 99 improper Ante at 737 A.2d tor’s 395). Feaster, 63-64, supra, 156 at 716 A.2d Unfor (quoting N.J. through tunately, damning presented statements were defendant’s prosecutor’s damning unprofessional conduct. the haze of the review, I plain standard of find that Even under error capacity to of the misconduct had a clear cumulative effects State’s impartiality jury. long As as we are corrupt the conscience, doubt, cannot, good take a human life. we portions prosecu- Although agree I with the Court that would opening simply statement that alluded to evidence tor’s error, id. at presented at trial did not constitute reversible see be and that much of the State’s examination 737 A.2d intent, motive, proper to demonstrate defendant’s witnesses was for The court admonished needlessly improperly pursu- prosecutor ing questioning: line of this something bigger with, and that's four tell I have a
Let me
problem
you
with the
now
asked
that resulted in the
times
questions
responses,
you’ve
jaw.
as to
the lower
I asked
was it relevant
removal of
you very specifically,
jaw
making the
You said it was.
where the lower
was used for
impressions.
stuff.
I’ve looked at the reaction
It wasn't.
I think that's inflammatory
*154
again,
jurors
time,
Then on the fourth
these
time
done it.
you
every
you've
jaw
jaw
mouth,
was in the
said,
removed,
that the lower
was
and the upper
reason to
a
There was
no
and
asked
question.
absolutely, positively
you
that.
repeat
Komgut,
going
be
careful
in terms of
I’m
to warn
Mr.
very
your
you,
relevant,
area.
If it's
if it’s
that's one
examination in this kind of
probative,
thing.
I don’t think it is.
ibid.,
waiver,
bias,
voluntary
conclusions are counter-
or
see
those
by
repeated derogatory
allusions
balanced and offset
State’s
absolutely
bearing on the
character —which has
no
defendant’s
guilt.
highly
allusions were made
issue of defendant’s
Those
manner,
limiting
inflammatory
accompanying
often without an
instance,
expres-
by
prosecutor’s
For
instruction
the court.
by wearing plastic
contempt
revulsion and
for defendant
sions of
clothes, dramatically
graphically, if
gloves
handling
while
his
and
subliminally, conveyed to the
the that defendant was a
loathsome,
addition,
ordinary
being.
less than an
human
In
indicating
prosecutor improperly elicited evidence
that defendant
testimony
guilty
prior
of
sex crimes.
Shaw’s
that
was
Officer
fingerprints
person”
other than
victim were
a “smaller
easily
groundwork
in defendant’s bedroom
laid the
for an
found
by
pedophile,
that defendant was a
a chronic
inference
molester,
guilty
who had another child
his bedroom and was
that
The
elicitation of
sexual misconduct with
child.
State’s
testimony
patently improper.
Officer Shaw’s
was
prosecutor
engaged
impropriety by condemning,
also
ridiculing,
complaining
pain
indeed
defendant for
about the
he felt
prosecutor portrayed
contemptible,
in his hand. The
defendant as
asserting
pain
petty
simple vanity
that his
was
weakness or
when
compared
profound suffering
experienced
with the
the victim
dying, conjuring
feeling
anyone
before
if
deserved to
death,
experience
Gregg,
the throes of
it was defendant.
supra,
Appellate
aggravated
Division reversed a conviction for
manslaughter
resulting
driving
and assault
from a drunken
acci-
prosecutor
dent because the
made similar remarks. 278 N.J.Su-
per. at
650A .2d
The court noted that
835.
“while we have no
respecting
post-crash
doubt
the evidence
behavior
relevant,
degree
purpose,
for
albeit to limited
a limited
regrettably
prosecutor
it is
clear that the
abused this evidence
using
primary purpose
portraying
it for the
defendant as an
vile,
189-90,
utterly
contemptible
despicable person.”
Id. at
Although
removed the victim’s highly improper. The trial also a model of her teeth was make prosecu- harshly reprimanded the much and recognized court as court, surely to the the and was painfully obvious to tor. It was was, well, body even of the victim’s that this invasion as fault, necessary death, made that was defendant’s a defilement by caused for forensic evidence of the need because however, to the court, repeat its admonition did not crime. The Therefore, graphic gratu- that this one must assume jury. amplified by the that was prejudicial had a effect itous tactic jury. prosecution to inflame the ongoing of the efforts are, when claims of misconduct Many other of defendant’s isolation, placed in the mosaic not substantial. When examined however, they the serve to reinforce prosecution, of the entire gravity jury’s understanding of the infected the prejudice strength evidence, the of the jury’s perception as the as well guilt of defendant’s making the final determination when evidence blameworthiness. guilt-phase Ultimately, prosecutor’s effect of the the cumulative testimony exploitation of admissible evidential misconduct and its summation, closing. In its by prosecutor’s epitomized together, and tie all the evidence given opportunity is State miscon- rejuvenate prejudicial effect of potential thus the Farrell, supra, 61 N.J. See cured or counteracted. duct otherwise (“[Bjecause represents prosecutor 293 A.2d State, say that people of the it is reasonable government and duty fairly fulfill his to see that he will jurors have confidence acquittal or guilty justice conviction is done whether proper or in summation whether innocent. His comments improper carry authority represents. with them the of all he It is unlikely juror intentionally prosecutor will believe a would (citation him.”) omitted); States, Berger mislead see also v. United *156 (1935) (“It 78, 88, 629, 633, 1314, 1321 295 55 79 L.Ed. U.S. S.Ct. is say average jury, greater in degree, fair to that the or less has obligations, plainly upon confidence that which these so rest the attorney, faithfully prosecuting Consequently, will be observed. insinuations, and, improper suggestions; especially, assertions of personal knowledge apt carry weight against are much the none.”). they properly carry prosecu- accused when should The closing highly prejudicial. tor’s in this ease was This was an case, prosecutor exploited emotional and the it as such. On summation, prosecutor the made a multitude of references to the impeccable accompanied by degrading victim’s character remarks on the defendant’s character. pertaining trial will involve and Any necessarily testimony evidence capital physical though to the victim. This cannot in evidence, admissible, be used a manner to so calculated confuse or the that it intertwines impassion inappropriately irrelevant emotional considerations with relevant evidence. There are occasions relating
when evidence
to the victim’s character and
be
personality may
probative
e.g.,
of critical
trial,
the
defendant’s assertion of self-defense or
aspects
provoca-
tion.
as in the matter before
the victim’s
Where, however,
us,
character has no
bearing
guilt
on the substantive issue of
or the
to be
the
penalty
imposed,
on
in
not comment
the evidence
a manner that serves
prosecution may
only
highlight
jury.
the victim’svirtues in order to inflame the
[Williams II,
1172.]
113N.J. at
550
451-52,
A.2d
supra,
II,
prosecutor’s
Williams
the Court found “[t]he
remarks
clearly improper
were
and should have been stricken from the
jury properly
record and the
disregard
instructed to
them.”
Id.
452,
prosecutor’s
at
Trenton school She education. She was system. special aas at the Bellevue Care Center to earn some extra part-time receptionist see, You was due to be married in 1983. That money. Beverly very day, 30, 1982, December and her mother before Beverly day spent Beverly
709
and
with the terror
the victim’s life
dreams
similarly contrasted
II,
as Williams
And,
in
this
felt
of her death.
she
at
moment
mercy
angel at the
of a
depicted the victim as an
prosecutor
Yet,
morally
comparison
in
to the
destitute.
defendant who
case,
prosecution in
comments made
this
statements
II are
considerably
The
Williams
made in
mild.
comments
II did not
Williams
approach
prejudice
the level of
inherent
meaning
prosecutor’s outrageous soliloquy on the
of childhood
this
chests,
toy
dogs,
parks.
precisely
and
That is
and the relevance of
commentary
bearing upon the
that has no
issues
kind
case,
turmoil, and threat-
engenders confusion and emotional
See id.
jury.
at
550
provoke
to inflame
A.2d
ens
566-67,
Pennington, 1172;
v.
N.J.
comparably egregious prosecutor’s to the pres summation in the ease, played ent 105-10, and on similar themes. See id. at 678 A.2d Improper 312. regarding statements defendant’s sex inter est are particularly likely prejudicial to have been in this case they Feaster, because key relate to a supra, issue. See 156 N.J. 61-62, at (noting A.2d 395 qualitative that “[t]he difference distinguishing those comments from the others discussed above case”). lies in key their relation to issues in the light jurors’ knowledge of prior defendant’s history criminal as a sex offender, regarding comments defendant’s sexual obsession and perversion Therefore, take on weight. added although evidence of defendant’s perversion sexual was relevant to show defendant’s intent, prosecutor’s excesses in making presentation such a especially prejudicial. were
The trial court’s most remarkable error
prose-
was to allow the
cutor
proceed
undeterred with
excessively
her
provocative
summation.
post-summation
The court’s
instructions
to the
recognized that
and,
this was an
therefore,
emotional case
that the
summations
understandably
were
emotional as well. That reason-
ing
logical,
legally
is
but
prosecutor’s
incorrect. The
conduct was
“
”
‘clearly
mistakably
improper’
“substantially
prejudiced
right
defendant’s fundamental
jury fairly
have a
evaluate the
Roach,
merits of his
208,
defense.” State v.
219,
146 N.J.
680A.2d
634,
denied,
cert.
U.S.
117 S.Ct.
C. *158 The govern standards that prosecutorial misconduct guilt at the phase apply also penalty at the phase of capital trial. Just as guilt-phase the State’s prosecution was suggestive founded on the portrayal of character, defendant’s bad penalty-phase the prosecu- punctuated tion was repeated with attempts to traduce defense
711 prosecu portions of the raises issue with four counsel. Defendant each, and, regarding criticizes presentation, penalty-phase tion’s defense portraying counsel and wit prosecution for defense the characterizing them as liars. Such deceptive, as and for nesses to argues, appealed the commentary by prosecutor, the and, effect, jury against the defense jury’s the emotions turned disagrees, noting The personal team on a level. Court integrity of disapprove attacks on the “[although strongly wq counsel, think is what occurred here.” we do not defense 596, at A .2dat 99. Ante 737 questioning the recognize prosecutor’s
I
that much of
on
acceptable
the
penalty
at the
trial was
and based
presentation
Nevertheless,
prosecutor’s repeated re-
I
the
record.
believe
presented
jury
discredit the evidence
quests for the
defense,
suggestions that the
conjunction
contemporaneous
with
presented at
that was not
upon
base its decision
information
trial,
strength
beyond
realm of fair comment on
went far
propriety
the line of
prosecutor
case.
treaded
of defendant’s
disregard
mitigation evidence
urged
defense
she
when
juror
his or her
testimony
required
A
is
to base
as untrue.
presented,
speculation
not
only upon
upon
the evidence
decision
not
It
is well-established that
presented.
what was
about
beyond
knowledge of
implies
reveals
evidence
prosecutor who
or
scope
presented
guilty
at trial is
misconduct. See
of that
395; Harris,
Feaster,
59,
supra, 156
156
at
716 A.2d
supra,
N.J.
Roach,
219,
122,
458;
As a of guilt result the misconduct in defendant’s trials, penalty-phase the Court should reverse defendant’s grant death conviction and sentence and a new trial.
V initially court The trial refused to allow into evidence defense (the Krych’s thirty-two page report witness Carol Report), a summary over pages on documentation 20,1997, abusive childhood. The court revisited the issue on June when, penalty phase, in the middle of the the trial court received jury Rrych note requesting Report. from the Defense attor- neys Greenman, Lependorf and Assistant Prosecutor Flicker and engaged following court then in the discussion: COURT: I have What done with a historically such as this is to question simply jury advise that all of have the evidence that was they admitted give just their Court for I that consideration, instruction period. normally discharged guilt before the is I it in deliberate, know I did I phase, again general did it not do this It’s not of the instructions in phase. part augment I the manual didn’t capital cases, and see a need to it, obviously. This have been avoided had I Ms. question may done that. Lependorf, you something wanted to on the record. place I LEPENDORF: think Mr. will. Greenman Judge. Judge do it, GREENMAN: I’ll I think there’s a reasons, number of that you should reverse to let your decision not DP-51 into evidence. COURT: What is number?
GREENMAN: DP-51. The is first reason wants it. obviously COURT: not No, true, that’s can’t they locate it. necessarily simply say they something? Don’t LEPENDORF: or they say, please supply COURT: Please I provide think think we a mistake. copy. they made meaning I Well, one, LEPENDORF: would do interpret want and if it, not, they jury. thinking ask clarification from the But more about this importantly, Judge, again, just this is a critical document for so reasons. It’s not many like a This is a simply police fundamental document that we report. have mitigating mitigating of all our support and I all of the prepared factors, say (sic), factors because it’s not the H factors that this is relevant only but report this was the basis for Dr. report least this the main Podboy' report —at coming that Dr. relied on in Podboy some of his conclusions. challenge that she was Carol and claimed Krych, chose prosecution preparing itself in the claimed that was biased biased in this report; report it was There that it slanted. defense, misquoted people, direction *160 that Carol used in Ms. Flicker’s summation attacked were a number phrases her and Krych, impartiality. jury to its determination on I that the should have this make report think things. in to or was biased One, Krych as whether not Carol number preparing to whether or not Dr. document; two, opinions this decide Podboy’s think serious on a or unbiased And I those are were based biased report. have in because the Prosecutor ease, that to decide the may this questions in her them summation. raised (sic) or not the stuff upon serious whether Well, COURT: they’re always question nothing new in is is in fact There’s which an based credible. expert’s opinion case as to that. this going through pages, jurors, the rather 450 belief is that than [M]y GREENMAN: looking in fact summarization, the which Carol’s is. are for whatever, report describing goes along, refers to exhibits as she specific And Carol’s report things, in all those documents. but it’s a summarization what’s various response by comparing Report the Following a the State objecting fact the State police reports, and to the that inadmissible together any countervailing report, the only put had one week to court its rendered decision: going have is in. I think all the evidence in. they I’m to allow the Krych report not it had on that in at this We’ve discussion I think it would be put point. improper if it have influence it I think would undue before. It is similar to a police report. jury.
were the in before length, length, after after hour at hour, her at hour heard They’ve testify challenged concerning that, heard that and testimony the also report, they’ve judgment, judgment, And in the to deal with that. my they’re my well-equipped jury, after matter is in not at this the has no before the certainly point report place argument deliberating this jury’s it. that may hands and on And they’re far as concerned. is of no moment as I’m have other cases capital happened for the “better” The that it would have been Court concludes Report, that failure to do so was to admit but trial court agree error. Ante I A.2d at 119. 737 harmless not Report, but would dismiss court should have admitted the admissibility of as to there is doubt error as harmless. When defen- evidence, must be resolved in the mitigating such doubt Bey, dant’s favor. See v. N.J. 557, 587, State A.2d 814 III). (1992) (Bey
A. mitigating only The evidence here was not relevant to the defendant, mitigating presented by might factors it have been jury’s finding crucial on of those Report one factors. The confusion, prevented would have providing map a crucial road for jury through Krych’s investigation, pinpointing Ms. those that she issues felt were most relevant to the deliberations on mitigation. difficulty having only faced the 450 supporting highlighted by is during documents the fact that Krych, direct and cross-examinations of Ms. the trial court stated bar, at side thinking regard ... first is my with these I think questions, they’re allowable
because of the [Ms. nature of the that I’ve heard responses so far. Krych] has We don’t have notes. There compiled report. be a may of, question frankly, mixing what one kid as up did to what another I opposed kid did. don’t really here____ know. There is a mass of material Later, the prosecutor expressed difficulty assistant her with the documents:
We all of school the the records which subpoenaed records, Ms. had and Krych in going reviewed because the school records are indeed and as I was letters, through morning, it this given I came of across that were documents not couple to I think. so us, There is much material that it’s a little hard to know. Krych remembering Even Ms. had trouble what was contained in the Upon materials. cross-examination Assistant Prosecutor Flicker, the expressed difficulty: witness this single Ms. is
Q: Krych, there a note in Jesse school records that Timmendequas’ mother, his did not show for Doris, up any appointment? A: though is is my there some reference to memory that, I don’t know exactly I — where it is. There is some reference to that. ifWell, there is a I’d Q: reference, like to find it. you Judge, objection. DEFENSE COUNSEL: COURT: Yes? pages Judge.
COUNSEL: We have 500 here, Can we do at the for break, judicial economy? give I’ll COURT: the witness an see if she can it. opportunity find
715 answer Q: you my question? Would trying objection. Judge, the I think she’s to answer question. GREENMAN: A: I know— exactly don’t recall the Report the was unable to prepared the who person
If
based,
process
the
of
it was
of the
on which
contents
documents
mitigating
find
of
factors
sifting through
pages to
indications
450
difficulty
jury’s
undoubtedly
added to the
only would have
and/or
determining
mitigating
factors.
the existence
confusion
jury’s request
nature of a
court is unsure
the
When the trial
deliberations,
into
“bring
jury
the
the
the court should
during
Brown,
uncertainty.” State v.
[the]
courtroom order
resolve
329,
440
see State v.
N.J.Super.
(App.Div.1994);
646 A.2d
275
Graham,
(App.Div.1995)
N.J.Super.,
The court’s comment that Kryeh testimony of lengthy Ms. to with the equipped” deal the from which The documents principles. those contradicts to its on findings mitigating pages was make factors were 450 length. jurors’ likely request The most their indicated desire to through having every one-by-one avoid to sift document in order Krych’s refresh on regarding to their memories Ms. conclusions obliged, very defendant’s childhood. The trial court was at the least, get to clarification. however, jury’s request,
Even without the Report the should have been trial comparison admitted. The to Report court’s State, police report by usually offered the which is not admitted hearsay, into evidence because it is is completely considered insupportable. The Rules do not to apply Evidence a defendant submitting mitigating penalty phrase. evidence in the See 2C:11-3(c)(2)(b) (allowing N.J.S.A. mitigating defendant to admit evidence, regard evidence without the rules while State is rules). required by to abide these addition, the court’s that Report contention the was cumula- only tive and by would have unsupported confused the is the contrary, Report provided record. To the a basis for the testifying Podboy conclusion of clearly witness Dr. and would have helped clarify jury, for facts rather than to confuse. holdings This Court’s on mitigating admission of evidence dictate a finding that the trial refusing Krych court erred in to admit the Report.
B. Despite concluding Report that the should have been submitted jury, the Court holds the error was harmless. See ante 737 A.2d at disagree. potential 119. I The jury’s that the penalty-phase deliberations were omission hindered court’s significant. is way knowing
We have no jurors requested Krych’s if the Ms. report to aid them in determining the of mitigating existence simply factors or they thought they supposed because were have it —the trial court called “housekeeping” request. it a jurors requested fact report middle of delibera- *163 tions, however, simply request was not the result suggests that the documents, inventory stemmed from a to the but rather of desire Report an in case. In jurors’ for to resolve issue the need the addition, engaged lengthy in a on the issue court instruction the sentencing phase: prior to the got telling all the I want to trust me on this you’ve
I’m you you one— —and not into evidence or means, If have it it it, simply put evidence. don’t you I this from when I didn’t say into evidence me. because by say experience, allowed forgot give get to us minutes, a within the first ten that, note, you I would probably forget thing. ... a We won’t they message jury the that should light very specific this to of asking they for a court evidence not submit note the have, jury likely they supposed to it seems the had thought were in mind. some other motivation Krych by marked the fact Report of the is potential effect c(5)(h) catch-all jury part to find Factor 24 as of the
that the failed as factor. Factor 24 read follows: being and classified as retarded with emotional mentally prob- evaluated Despite none of provided lems the school’s child the study team, professionals by public counseling psychological evaluation for Jesse as or further services such
follow-up Timmendequas. fact did not receive twice the that defendant Krych Ms. testified jurors these counseling remembered follow-up school. Had necessary testimony, they have had the pieces two of would finding of 24. required for the existence Factor information on Court, Report supplemented have According to would not therefore, any meaningful way; Court information Report contends, testimony for Krych’s the need Ms. obviated 24. id. at finding of Factor See for make order however, an 633-34, Krych, testified over at 119. Ms. 737 A.2d time, time. In that she mentioned period extended jurors could only Some or all of counseling lack of twice. To the exis- easily such information. determine forgotten have of the docu- of Factor 24 examination tence or non-existence sifting difficult task of have involved the ments alone would find, first, Study the evidence Child through pages second, any examination, evidence the absence Team follow-up counseling or Had evaluations. been able to *164 32-page report, comprehensive review the a brief but and accurate summary evaluation, history of school supple- of and ment that with the State’s documents on defendant’s school histo- they ry, likely would have found Factor 24.22 voir dire on their
Several during members commented in importance counseling belief the of willingness and their to take mitigating into account factors that would diminish defendant’s dire, culpability his voir During for acts. M. Juror indicated that all change not defendants are able their behavior without the help of intervention: mitigation, just of
Q: Now, terms let me ask a There you couple questions. background, be some information about may the defendant’s trau- childhood things of mas, that nature. feelings, ifWhat, do have any about an individual who had a you bad childhood? Do think someone can overcome a you bad childhood? overcoming A: IYes, believe are I people capable bad childhood. don’t believe it or it’s always but I believe at times it happens always possible, can. And do think Q: can do that on their own you they without intervention aby therapist? A: Some be able some not. may to, may Juror P. also indicated that important treatment would when be young someone is age experiencing identified at a as abuse his childhood: committing
A: Um-hum. I think that if he abused was was and he an act probably young, get when he was he and didn’t of course, he would help, usually, doing continue this, and whether he a child or I adult, mean the act itself, age, guess no matter what I is not —is bad. very dire, questioned When by prosecutor on voir Juror R. responded: What
Q:
do
think about
like
you
individuals
mentioned
pedophiles
you
—and
something
getting counseling
about the value of
[sic]. Do
think that’s
you
22
jurors’ finding
of several other
of defendant's catch-all
components
including
25(a),
majority
submission,
of Factor
which documents defendant's
largely
childhood
to domestic abuse and is
on
exposure
based
Ms. Kiych's
see
juiy
633-34,
ante
A.2d at
testimony,
indicates that the
did not
an
have
overall mistrust of Ms. Kiych.
sort of sickness or
that,
for
have
some
may
individuals who
important
of it
know
do
think there is
it,
antisocial
and are aware
behavior,
you
trying
get
value of
for such behavior?
self-help
that,
I
think there’s value in
uh-huh.
always
A:
jurors
highlight the value that some of
These comments
they
regarded
might
have
placed
counseling
on
and indicate
mitigat-
counseling
such
as
the fact that defendant did not receive
help in
ing.
jurors
seeking
Report in order to
If
were
simply
were
of the existence of Factor
their determination
they sought in
tome of documents
unable
find
evidence
compelling
is
that this
through, there
evidence
they had to sort
jury’s
for
by the
contributed to the
sentence
oversight
court
enough
mitigation
compelling
24 is
evidence of
Factor
defendant.
weighed heavily against the
jury, may
it
if found
have
case. Evi-
favoring a death verdict
this
aggravating factors
*165
well-
psychological
for
responsible
that those
defendant’s
dence
necessary steps
explore
to
young age
a
failed to take the
being at
during
might
extremely compelling
signs
problems
of emotional
be
of
jurors
exploring
are
what level
the trial in which
phase
the
of
his or her crime:
to
to a defendant for
responsibility
attribute
related to the
should be directly
it is
because the
Indeed,
punishment
precisely
jury
that
allowed to consider
of the defendant
the
must be
personal culpability
or
give
mitigating
character or record
to a defendant’s
effect to
evidence relevant
creating
unguided
an
the risk of
of
Rather than
circumstances
the offense.
the
mitigates against the death
of evidence that
full consideration
emotional response,
give
jury
the
moral
to
is to
a “‘reasoned
response
is essential
if the
penalty
”
background,
crime.’
character, and
defendant’s
Lynaugh,
256,
106 L.Ed.2d
2934, 2951,
v.
109 S.Ct.
302, 327-28,
492 U.S.
[Penry
(1989)
Lynaugh,
(quoting
2320, 2333,
S.Ct
164, 184, 108
v.
487 U.S.
Franklin
284
omitted)
(1988) (internal
(O’Connor,
concurring)).]
J.,
155
citation
101 L.Ed.2d
should,
have
Ms.
question,
submitted
trial court
without
The
is of constitutional
jury.
an error
report
When
Kryeh’s
“ ‘beyond reasonable
dimensions,
a
must be convinced
the Court
contribute to
of did not
complained
that
the error
doubt
”
258-59,
Satterwhite,
108
supra, 486 U.S. at
verdict obtained.’
1798,
(reversing
death
at 295
100 L.Ed.2d
S.Ct.
penalty phase)
in
Amendment violation
of Sixth
sentence because
18, 24,
California,
87
386 U.S.
S.Ct.
(quoting Chapman v.
(1967));
II,
Bey
supra,
17 L.Ed.2d
see
also
N.J. at
114-15,
(Handler, J.,
know,
VI disposition The of deeply Court’s this is disturbing. case Defen- right impartial jury dant’s to a fair and representing a cross- community, section of power violation of which has the pervade process, clearly by the entire trial circumvented addition, prosecutorial trial court. misconduct in this case level, eases, reached an only capital extreme not for but for generally. criminal recognize eases Court’s failure that dangerous precedent, creates substantial risk that such conduct will prosecutions be tolerated other criminal and that defendants will the future subjected be excoriated and prejudice extreme attempting against while to defend themselves Further, charges. criminal holding the Court’s that the trial court not did commit error refusing reversible to submit crucial mitigating evidence to plainly insupportable light is permissive our jurisprudence on the admission such evidence at point the critical between life and death. troubling is disposition
Most the Court’s of defendant’s claim jury’s knowledge prior his sex offense convictions does require not Quite apart reversal. disposi- from the fact this tion existing principles process controverts of due and fundamen- *166 recognizing tal fairness knowledge such highly prejudicial as in ease, any the grounds Court’s failure to on reverse these has implications broad for involving Megan’s future trials Law defen- i.e., those who have been convicted of at least one sex dants — offense, and being are tried for another committed after the registration defendant’s pursuant Megan’s guilt Law. The of may significantly these future defendants well be in more doubt case; than defendant’s was in this press and the coverage will relentless, po- undoubtedly ensuring most surely always be jurors knowledge in have of defendants’ tential these cases will the prior sex offense convictions. by Megan’s the circumstances created particular
Because of Law, in general as the inevitable well the societal belief as offenders, vigilant prevent of sex the Court must be recidivism being sex convicted on potentially prior innocent offenders from evidence, and, capital prosecutions, prevent in than reliable less death a with guilty being from sentenced to sex offenders decision knowledge prior of the record. Court’s grave injustice before today only imposes a on the defendant not us, greater injustices will possibility with that even it carries it capital in the fu- punishment of characterize our administration ture. ultimate, punishment, death is the irreversible
Because
different, height
always recognized
apply
it must
has
Court
Ramseur,
penalty
cases.
procedural safeguards
death
See
ened
recognition has
That
not
supra,
N.J. at
Courts least when faced with the most atrocious one, In a as prospect crimes. case such this a retrial is daunting discouraging. and No wants experience one to crime, nightmarish reenactment of defendant’s the emotional toll trial, be conducting that would exacted in reopening another surviving family, the wounds of the victim’s not to mention the expenditure of the required extensive resources that would be combination, secure a death a sentence second time. these are finality reasons make almost They irresistible. are also powerful, but impermissible, reasons for the Court relax procedural safeguards and substantive available to defendant —to a permeated tolerate trial with publicity, scurrilous with knowledge prior of defendant’s inadmissible sex offense convic- tions, misconduct, persistent prosecutorial and the exclusion of clarifying mitigating evidence—in order sustain death sen- tence, thereby capital end prosecution. That avenue, however, open. is not We are faced here with errors that would, ease, any inexorably other lead to conclusion that the did not receive fair trial. Court attempts clearly
The to look dispassionately at death —both that of victim and that faced defendant —and apply principles conscientiously. Yet, of fairness as La Roche- death, sun, maxim expresses, foucauld’s like be cannot looked Court, steadily. death, attempt its to look directly at vision. loses its Rather than applying required legal princi- ples objectively, today the Court affirms defendant’s conviction glance and sentence without a at fundamental principles of crimi- justice nal and without heed for the influence of reasoning its on jurisprudence. our The sacrifice we make when we sentence a *168 compari- in pales imprisonment instead death life defendant by who cannot gain holding that defendant to what we son death, no put to simply cannot be a fair trial in this State receive abandoning principle guilt. By his how and clear matter certain integrity put in order to yielding judicial and finality, death, lose, greater the essence of fairness even we with justice system. criminal is the heart of our O’HERN, POLLOCK, GARIBALDI For affirmance —Justices and COLEMAN —4. part and part; STEIN reversal For —Justice affirmance KING, assigned) (temporarily Appellate Division
Judge —2. HANDLER —1. For reversal —Justice A.2d 1288 HARRISON, DANIEL IN THE MATTER OF J. AT LAW. AN ATTORNEY 3, September 1999. CAUSE
ORDER TO SHOW n report having with Disciplinary Review Board filed Court, HARRISON recommending that J. DANIEL Supreme WESTWOOD, admitted to the bar who was ENGLEWOOD temporarily suspend- and who thereafter this State in February this Court dated practice from Order of ed disbarred, time, good this suspended at be and who remains appearing; cause cause HARRISON show that J. DANIEL
It is ORDERED 26, 1999, p.m., Tuesday, 2:00 on October this Court before Trenton, courtroom, Complex, Hughes Justice Supreme Court