*1 after he the panel report received and apologized his inat- tention. determining the appropriate discipline matter, in this respondent
Board notes was admitted to the Bar in 1945. He prior has no record of discipline and there are no com- ethics plaints currently pending against him. Respondent further admits he poor made mistake and judgment exercised in his dealings with ethics Accordingly, committee. the Board unanimously respondent recommends publicly repri- be manded. One member participate. did not respondent Board further required recommends reimburse the Ethics Financial appropriate Committee for ad- ministrative costs. JERSEY, PLAINTIFF-RESPONDENT,
STATE OF NEW v. JAMES WILLIAMS, EDWARD DEFENDANT-APPELLANT. Argued November 1987 Decided December 1988. *6 Defender, Astore, Deputy and Lois Assistant Public Matthew Defender, Julio, argued the Deputy Assistant Public De First Defender, Slocum, Public attor- appellant cause for A. {Alfred ney). Pasternak, General, argued Deputy Attorney
Steven Edwards, respondent Cary Attorney General of cause for {W. Jersey, attorney). New opinion
The was delivered Court WILENTZ, C.J. County jury convicted the defend- January a Mercer
ant, Williams, Beverly Mitchell James Edward of the murder appeals directly him He and thereafter sentenced to death. 2:2-l(a)(3). reverse right. as of R. We both Court for reversal and the sentence. We find as the basis conviction to assure that the phases of both the failure of the trial court reversible error in the impartial. was We find further remand this matter for a penalty phase jury instructions. We guilt penalty proceedings accord- new trial of both the opinion. ance with this
I.
Facts 30, 1982, approximately p.m. Thursday, 4:00 December At Beverly Mitchell arrived for work at the twenty-three year old Mitchell, Center, nursing home. a Trenton Bellevue Care School, part-time High Trenton held a full-time teacher at Center, weekdays she position receptionist at the where on as a occupied in the p.m. a desk worked the 4:30 to 7:30 shift. She area, normally-locked to the reception and controlled access day, she seen p.m. late as 6:05 on that was front door. As A nurse sitting typewriter reception in the area. at her alone shortly p.m. 6:45 noticed sometime before Center 6:45, the nurse entered Mitchell not at her desk. At .about adjoining area, reception light, an office turned on the Beverly body found lying Mitchell’s dead on the floor. gruesome. lay The scene was The victim face down and naked, clothing her strewn about the room. There was blood floor, walls, on the body, the furniture. Under the investigators undergarment, found an pieces jewelry, some and a steak knife with covered blood. autopsy determined Beverly Mitchell had been thirty-six twenty-one
stabbed times: there were wounds on the back, front, eight seven on the defense wounds on the body. Additionally, bruises, contusions, there were and abra- *7 body, sions numerous areas of the and the victim’s throat was slashed. The medical examiner found that the throat slashing and superficial the defense wounds were and would not have killed or immobolized the victim. The wounds to the not, body estimation, front of the would in her have immediate- ly either; killed or immobolized victim it was the wounds to the back that were fatal. The medical examiner concluded that the steak knife discovered at the scene could have been the weapon, murder but that another knife could also have been opinion used. It was also her sexually that the victim had been assaulted, although genital she found no trauma to the area. days murder, mother,
Two after the defendant’s Sharon Ildefonso, brother, younger and Floyd, Dennis came forward. Floyd said that he accompanied had defendant to the Bellevue evening Care Center on the of December 30 and had witnessed killing. testimony His would become the foundation of the against State’s case James Williams. brothers,
Although Floyd and had Williams known each other only murder, a few months at the time of the having been separate raised in They foster homes. nonetheless had become companions, Floyd, eighteen, with who was seventeen or tend- ing twenty-one year-old to follow his brother’s lead. So it was evening killing. spent According Floyd’s testimony, the two brothers drinking with four friends of December 30 beer late afternoon okay,” had “seemed to be apartment. Williams at Williams’ began speaking during gathering point but at some “going to spoke He more than once of acting aggressively. up money tonight” going to “beat some white make some repeating the point placing a knife in his belt and boys,” at one that he did not making money. Floyd testified statement about employed seriously, since defendant take this statement not, knowledge, in Floyd’s worker and was a construction destination, knowing his money. Though not brother’s need of apartment left the' accompanied Williams as he Floyd ap- young men Avenue. As the two walked to Bellevue Center, Floyd pointed out the Bellevue Care proached the died. grandmother his foster had place where Center as Center, his entrance of the proceeded to the main Williams it had opened the door—whether following. Defendant brother young stated to the black Floyd did not know—and been locked to see a Mr. reception area that he wanted in the woman Mr. Hoffman was on indicated that Hoffman. woman Defend- floor, toward the elevator. Floyd walked second her however, began pushing ant, approached the woman and room, defend- Floyd Once room. followed. into a back lights ordered and then the door and turned out ant closed comply, started to but to take off her clothes. She the victim began "got mad” and point defendant stopped, at which then *8 cried, voice, help victim, “Jesus in a scared hitting her. The me.” horren- followed, according Floyd’s testimony, was a
What raped and stabbed defendant sequence of events which dous by, gripped by fear. Floyd passively stood victim while the floor, lay where she the 5'2" victim to the Williams forced 6'6" pen- appeared to defendant Floyd testified that on her back. screamed; over her put he his hand She etrate the victim. eventually cutting her.” The victim then “started mouth and her in stabbed up, point at which defendant managed to stand face, After victim her the back. fell to floor on got stabbing defendant down on one knee and “started her in give attempted then back.” Williams his brother couple Floyd knife and have him “stab her a of times.” began looking if refused. Defendant then around to he had see dropped anything, saying any that he did not want leave me if I anything,” Floyd evidence. “He asked touched recount- trial, out, way I no.” ed at “and said On the Williams took the pocketbook. victim’s bleeding limping slightly leg
Williams was from his he crime; left scene of the he blamed his stab wound on his nervousness, and Floyd person brother’s told “the last who I was nervous iced him.” He later rubbed blood on the elbows Floyd brother’s He told that he his coat. had stabbed the liver, lungs, in her woman and heart to make sure that she was dead. proceeded
The two brothers apartment, back Williams’ defendant the knife where hid he had with him under some dumped Beverly blankets. Williams the contents of Mitchell’s pocketbook apartment, money on the floor of the searched cards, put everything pocketbook. and credit then back into the coats, changed though Defendant then washed his hands and he change jeans Floyd did his bloodstained boots. also jacket changed his on defendant’s two men instructions. The again, proceeding along went out first to a site the Delaware River, put pocketbook where into the defendant rock water, it points tossed into the and then to various in Trenton in Trenton, way through an to establish an alibi. effort On Center; Bellevue, they passed passed “as Bellevue Care he they yet. laughing.” he said don’t know And he started At Trenton, point during journey bought one around Williams joint” order, and smoked “what looked like a white he later Floyd, testified, help Floyd told “to him handle he did.” what however, using drugs that he had not seen Williams earlier in nothing impaired day, and that he had noticed in defend- ant’s motor skills.
Floyd remained silent days, telling about the murder for two mother, Ildefonso, only his Sharon with whom he was then living. Both were fearful of defendant. Their decision to come forward came after Williams made an unannounced visit to the apartment January bag bloody Ildefonso 1 with “a full of clothes,” Floyd proceeded which he and to wash at the laundro- laundromat, mat across the street. While at the defendant stated that he kill intended to his mother’s minister. The apartment, brothers returned to Floyd the Ildefonso where saw carrying gun. left, that defendant Floyd a After Williams and Ildefonso. decided to contact the authorities. following day, Williams was arrested. A search of his uncovered, items, coat,
apartment among jeans, other murder, evening boots that defendant wore on the knife, cloth, serrated steak pellet gun, blood-stained copies newspapers providing of two local with articles details of 3, 1983, Beverly January the murder of Beverly Mitchell. On pocketbook Mitchell’s was recovered from the Delaware River. found, belongings, Inside were in addition to the victim’s two letters addressed to James Williams. April County Jury
On a Mercer indicted Grand following charges: knowing purposeful defendant on the conduct, 2C:ll-3a(l) murder in his own violation of N.J.S.A. (2) (count one); during robbery, murder the course of a in 2C:ll-3a(3) (count two); robbery violation of N.J.S.A. while knife, (count armed with a in violation of 2C:15-1 N.J.S.A. three); (count four); robbery, in violation of N.J.S.A. 2C:15-1 assault, during aggravated murder in the course of an sexual 2C:ll-3a(3) (count five); aggravated violation of N.J.S.A. sexu- armed, 2C:14-2a(4) al assault while violation N.J.S.A. (count six); assault, aggravated sexual violation of N.J.S.A. 2C:14-2a(6) (count seven); during murder the course of a bur- 2C:ll-3a(3) (count eight); glary, burgla- in violation of N.J.S.A. knife, ry while armed with a violation of 2C:18-2 N.J.S.A. *10 (count nine);1 possession of a pur- knife for an unlawful (count pose, ten). in violation of N.J.S.A. 2C:39-4d Counts four, six, ten prose- were later dismissed on motion of the Floyd cution. Dennis was not indicted in connection with the murder. brought motions, pretrial
Defendant a number of the denial challenges. of he which now These include a motion to allow dire, attorney-conducted permit voir motion to voir dire questioning regarding prejudice, racial implement a motion to jury system struck for the exercise of peremptory challenges, and a peremptory challenges.2 motion for additional
Jury began 3, 1984, January selection and continued for days. nine twenty The defense exhausted all peremptory chal- lenges seated; before the final was the State exercised ten peremptories. of its twelve jurors Seven were excluded for cause regarding capital punishment, because biases six for opposition their penalty, to the death and one support for his it in all murder cases. The court refused to excuse for cause juror initially one who impose stated that she would the death penalty in regardless circumstances; all murder cases of the prospective challenged was peremptorily by the de- jurors fense. Sixteen were excluded for reasons unrelated to views, their death two were excused consent. The voir by repeated objection dire was marked defense to the judgment Defendant contends that he is entitled to a on the acquittal burglary charge, being finding there insufficient evidence to that the support (i.e., Center) structure entered the Bellevue Care was not to the open public privileged 2C:18-2a(l). and that defendant was not to enter, N.J.S.A. As we grounds, reverse the conviction on other we do not reach this issue. hearing ground 2Defendant also moved that the bail be held in camera on the attending proceeding that the an would pretrial publicity him of a open deprive jury. fair trial before an That motion denied, was but an in camera impartial Court, hearing bail held on Interim order of this eventually Court proceeding, directed the release of the of that ultimately State v. transcript (I), (1983). Williams 93 N.J. scope limited of the questioning, especially respect court's with juror’s to the imposition attitudes toward of the penalty. death prosecution’s At trial the principal Floyd, witness was Dennis gave who the above-summarized account of the sur- events rounding Beverly the murder of prosecution Mitchell. Other witnesses corroborated aspects Floyd’s the essential version events occurred before and after the murder. One Floyd’s witness description confirmed aggressive of Williams’ apartment, behavior at the agreed that defendant had *11 relatively seemed sober. Several noted the strangeness of Williams’ behavior later that evening, particular and referred seeming defendant’s posed by “poi- obsession with a threat son in the They bubbles water.” also Floyd’s testified to timid passivity while in company. defendant’s trial,
Throughout prosecution the emphasized the brutali- ty of the crime and the character of the victim. opening The began by noting statement Mitchell Beverly “[bjright, was beautiful, educated, choir,” religious, a of her member church and went to detail background. prosecution’s on her The direct belabored, of the similarly examination victim’s mother over repeated objections, defense counsel’s aspects favorable lifestyle. background victim’s References to the victim’s were during also made summation. Such references caused defense to move for immediately a mistrial both after prosecution’s summation, opening following and its but these ground motions were denied “a on the certain amount background” is permissible. presence
The defense conceded at Williams’ the scene murder, argued Floyd’s but that Dennis account was self-serv- ing pointed could be trusted. The defense out incon- contended, Floyd’s testimony sistencies in the details of on testimony present basis from defendant’s friends apartment crime, prior Williams’ to the defendant been had using drugs day on that and was intoxicated at the time of the killing. 31, 1984, January guilty
On returned a verdict of all counts.3 continued,
During penalty phase, prosecution again objection, over to refer to the victim’s character and back- ground. prosecution sought to establish that the murder outrageously wantonly was vile and that it occurred in the assault, course of the commission of sexual both facts consti- tuting statutory aggravating photo- factors. It introduced graphs body testimony of the victim’s from the medical examiner, who concluded that the victim remained conscious pain inflicted, and able to feel after the frontal wounds were sustaining and that the victim lived several minutes after fatal back wounds. establish, sought alia,
The defense that Williams inter; acting under the influence of mental extreme or emotional capacity disturbance and that his to conform his conduct to the requirements significantly impaired by of law was intoxication largely and/or mental disease. It drew on records from the (DYFS), Family Division of Youth and Services which had dealt with defendant from the time he was fifteen months old. The suggested evidence that Williams’ life had been filled with *12 jury guilt-phase court, 3Defendant contends that the trial in its instructions, (as failed to that as a ato conviction for explain adequately requisite capital non-capital) murder, distinct from defendant had to be found to have commit- ted the murder his own conduct." N.J.S.A. 2C:ll-3c. "by Special explanation jury might of this called for where there is a risk that point clearly otherwise convict a defendant of murder on a of capital theory accomplice Although case, In this such however, no risk existed. the defense liability. suggested during the trial that Dennis shared for the Floyd responsibility jury murder, instructions made clear that no conviction for adequately finding murder could result from a that it was the conduct of not capital Floyd, defendant, that of that caused the death of the victim. The court used the straight- words "own conduct" more than once and the offense in a explained forward manner. No further elaboration of the distinction between capital murder was on the facts of this case. non-capital required instability first; highlight emotional trauma from the history which, this life age nine, was the in incident at accidently defendant had his younger shot brother to death. by His childhood had been place- marked care numerous foster inadequate psychiatric ments and intervention. The defense 1982, Williams, also introduced evidence November worker, construction had by been hit in the head a load of block, falling cinder after which began change his behavior in an alarming point fashion. It apparently was at this “poison defendant became fixated on the threat from bubbles the water.”- aggravating found that both factors existed this
case, i.e., that the murder outrageously wantonly vile and occurred in the course commission of sexual It rejected mitigating assault. age factors defendant’s (twenty-one), the time the murder alleged his extreme mental disturbance, alleged emotional and his capacity, diminished but did find mitigating that some “other relevant factor” exist- jury, operating capital ed. The punishment charge under the Court, by that has since been invalidated this State v. Biegen- wald, (1987), 53-67 mitigating N.J. found that the factor outweigh factor, aggravating failed to each im- therefore posed penalty. the death (as acknowledges)
We note at the outset that the State our holding compels in Biegenwald penalty phase reversal proceedings below. order death to be “[I]n imposed, prove beyond the State must a reasonable doubt that outweigh aggravating mitigating factors factors.” Id. conclusion, at 67. opinion Our cannot be limited how- ever, challenges guilt as defendant raises substantial Moreover, phase as well. since other issues raised defend- ant, though holding, significant may essential our have a bearing capital on the proceedings, course of other future those issues will also be treated.
II. Dire Adequacy A. of the Voir re- argues that the conviction below should be Defendant manner in the trial court conducted because the which versed whole, inadequate, so when viewed as a the voir dire was right to a defendant’s federal and state constitutional it violated alleges impartial jury. This attack fair trial an broad-based perfunctory questions repeatedly the trial court asked regarding pro con—toward jurors’ attitudes —both precon- exposure pre-trial publicity, and penalty, death their to concerning The opinions guilt of defendant. ceived inadequate argued, it is left the defense insuffi- questioning, challenge intelligent an ciently informed to make effective peremptorily. cause potential jurors for concerning overall agree defendant’s contentions We with not, however, inadequacy need reach of this voir dire. We would, by the voir question inadequacy whether the dire Rather, itself, inadequacy, warrant reversal. we hold to with the trial court’s erroneous refusal when combined cause, effectively' for which prospective dismiss Pfeiffer requires peremptory challenge, loss of a resulted defendant’s guilt penalty proceedings. reversal of both the court’s perfunctory questioning nature of the trial peremptory to exercise its jurors only forced defense manner, it also challenges in uninformed —almost an random— prosecutor perempto- ability of the to exercise her undercut the Moreover, effectively. significant the lack of ry challenges on a issues regarding jurors’ attitudes host of information effectively parties ability challenge jurors denied both cause, unable importantly most left the trial court perhaps many to serve. fairly jurors the fitness of evaluate Thus, significant number of parties both were forced to use responses challenges jurors given who had peremptory strike complete impossible interpret or who with a more that were effectively This reduced record dismissible for cause. would be
409 challenges of party’s the number at each disposal thereby panel actually reduces our confidence in the was selected. this, in a case guilt Even such as where the evidence of is compelling, right to a fair diligently trial must be protected defendants, regardless to insure that all of the charged crime weight or the of the produced, by evidence are tried a fair and impartial jury.
Although portion a significant of the errors that we have qualification, identified concerned death complete our of review jury process compels this selection us to conclude that questioning jurors of numerous woefully inadequate so only penalty phase that these errors infected not of this trial, but seriously also undermines our confidence in the fair- and impartiality guilt proceeding. ness Counsel must be opportunity afforded the for a thorough voir dire to evaluate jurors’ and assess in effectively participate attitudes order to in jury If selection. counsel prejudice unable screen out bias, that inevitably juries. leads unfair This result —or the possibility of this result —cannot be tolerated. impartial
It is axiomatic that an jury necessary is a condition Maxwell, 333, 362-63, to fair trial. See v. 384 U.S. Sheppard 1507, 1522-23, 600, (1966); 86 S.Ct. 16 620 L.Ed.2d Estes v. Texas, 532, 1628, den., 543, 381 U.S. 85 S.Ct. 14 L.Ed.2d reh. 875, 18, (1965). 382 86 15 118 U.S. S.Ct. L.Ed.2d At earlier an case, stage emphasized right by this Court to trial an I, impartial jury, paragraph secured Article 10 of the New Jersey Constitution as well as the sixth amendment of the Constitution, panel nearly United States be “as ” impartial humanity ‘as the lot of admit.’ will State (I), (1983) omitted). (citations 93 Williams 60-61 “This N.J. requirement particularly jury impartiality of fairness —and —is heightened in in cases which the defendant faces death.” Id. at
61; Ramseur, (1987). State v. n. N.J. jury,
In order to impartiality insure the we have emphasized importance exposing the critical in the voir dire (I), supra, Williams 93 N.J. at 68. latent
potential and
bias.
(I)
In Williams
suggested
we
trial courts
searching voir
examinations.
of more exhaustive and
dire
consider the efficacy
conducting
court in
the voir dire should
responsive
particularly
jurors
regarding the
as to
examination of
of counsel
prospective
requests
greater
The court could consider whether there should be
bias.
potential
excusing jurors
willingness
the defendant
for
to resolve doubts
favor of
judges
cases, trial
should exercise extraordinary
cause. Particularly
capital
jurors
and could excuse
cause any
care in
voir dire
potential
*15
prejudicial
where such
has
to sensational
publicity, especially
who
been exposed
is
involves
inadmissible evidence.
court
patently
exposure
repeated
jury instruc-
also mindful of the need to fashion effective cautionary
should
(footnotes
[Id, at
to
the
their
68-69
tions and
increase
of
application.
frequency
omitted).]
dire
traditionally within
Voir
procedures and standards
are
powers
trial
and “its
discretionary
vested
court
the broad
ordinarily
ap
on
of discretion will
not be disturbed
exercise
Jackson,
cert. den. sub
148,
(1964),
State v.
N.J.
peal.”
43
160
Jersey,
690,
v. New
379 U.S.
S.Ct.
nom. Ravenell
85
13
Singletary,
(1979),
State v.
N.J.
(1965).
L.Ed.2d
In
80
55
572
to
for this deference
the trial court:
discussed
rationale
we
concerning
jurors
are
Decisions
bias
primarily
potential
prospective
juror’s
judgment concerning
subjective
bottom a
in nature.
at
require
They
designed
he is able to
he
to
to detect whether
credibility
responds
questions
such evaluations are
as a fair and
trier
fact.
sit
impartial
Consequently,
during
juror’s
an observation of
demeanor
necessarily dependent upon
course of voir dire —observations
which an
court is
from
appellate
precluded
making.
judge
he was in a
demeanor,
trial
observed the venireman’s
Inasmuch as the
statements,
such
credibility
assess
accurately
sincerity
position
evaluation____[Id. at 63-64
therefore
due deference to his
and we should
pay
(citations omitted).]
dire
State
voir
capital
proceedings
reviewing
On
Ramseur,
supra, 106 N.J. at
and State v.
Biegenwald,
35-37,
supra, 106
256-57,
N.J.
the trial
at
found in each case
we
qualification and
problems
to the
of death
approach
court’s
noted in
pre-trial publicity
We further
entitled
deference.
juror’s
appraisal of a
Ramseur
weighing and
that
sensitive
“[a]
duty
court
in its
response
by
made
the trial
entire
must be
question
resolve the
of whether the
has shown bias or
prejudgment____”
Whereas defendants in Ramseur contested cause, rulings challenges various here defendant attacks comprehensiveness dire, overall arguing voir it falls (I). short the standards articulated in Williams claim, order to totality address a review of the of the voir necessary. dire
1. Voir Preliminary Dire Instruction any potential
Before jurors were or questioned, seated required complete questionnaire each was outlining his or case, occupation, familiarity her with the and whether he or she *16 any prior any had had participants contact with in the defendant, witnesses, including trial and counsel. The trial court then conducted the on responses voir dire the basis of the questions. to the written Prior commencing any to individual however, questioning, provided jurors the trial court the with following regarding pro the qualification instruction the death cess: jury differing
The on this have as to people panel probably widely opinions those Some of believe that a death questions. you may should never be penalty no matter what the a crime defendant has committed. Others imposed may believe that the death if should be a defendant is penalty found always imposed guilty of no murder matter what the circumstances are. Some of you may believe that the is death in some cases but in not others. Some penalty proper subject____ of not have formed on the you may opinions any Having serving of these views does not any from necessarily you disqualify juror as a in this case. You are if is view so broad and so disqualified only your held that will not follow instructions at the close of the trial with firmly you my guilty guilty to whether the defendant is or if found respect ... whether 412 or Court some other of death whether the will be imposed impose penalty a death the law. views short, sentence authorized about by your penalty or if cause to one the other way vote you only they you automatically disqualify regard the defendant to the evidence instructions to whether
without my guilty to a death is to be is or as whether imposed. penalty concerning propriety of this have serious reservations the We problem this it of with instruction type instruction.4 qualifi death effectively during tells a what answers responses process lead to automatic excusal and what cation surely Although excusal. this instruction was intended to avoid jurors openly honestly disquali to come forward and and enable fy prolonged questioning, unwisely put it themselves without position potential juror determining in the of whether he or requirements jury.5 serve legal she met the on 4Although governing this was the test dismissals for the basis of instruction 510, 21, 1770, Illinois, Witherspoon v. U.S. n. 88 cause set forth 391 522 S.Ct. 21, 776, (1968), adopted n. 21 and not 1777n. 20 L.Ed.2d 785 this Court 255-56, Ramseur, Texas, supra, 106 N.J. based on Adams v. 448 State v. 2526, 581, 38, 45, 2521, (1980), Wainwright and U.S. S.Ct. L.Ed.2d 849-53, 841, 418-26, (1985), Witt, 105 S.Ct. 847-53 469 U.S. L.Ed.2d Rather, objection. potential it that fact is not the of our is the bias that source "substantially may iryected impair1' if the test were used be Witt —even (ibid.) by instructing get people how to themselves excused from service. — objection legal prior necessarily to voir 5Our this instruction dire does jurors any knowledge concerning and mean that the must be shielded from all contrary, helpful penalty law this state. On we believe it would death provided jurors penalty if death the trial court with an outline this state’s See 2C:ll-3. statute. N.J.S.A. murder, proceeding Knowledge capital about what constitutes the bifurcated separates guilt penalty phases, "aggravating use of the jurors mitigating during sentencing potential factors" will enable all scheme concerning misconceptions questions penalty free answer death concerning faulty assumptions law is in this state. how the administered Additionally, provide jurors type with common of instruction will all any questions, removing from which to answer difference base information law, jurors knowledge between based might We are mindful that even this informational instruction inhibit degree jurors believe in death for all homicides or who some who *17 scrupled freely voicing opinion philosophy are death from an odds with however, instruction, danger This is minimized with this because our law. aware, instruction, necessarily type juror on this of what based important, delicate, Given complex nature of the qualification process, death there can be no substitute for searching thorough by inquiry the trial court into each concerning individual’s attitude penalty. impor death An ingredient inquiry tant in this open-ended is the use of ques tions, opinion which in likely our are most to provide counsel insight jurors’ and the court with opinions into and biases. Once the trial juror court has elicited from each sufficient person’s information concerning predilections are —which likely expressed freely much more to be juror when the is not constrained an instruction from the court on what kind of answer leads to automatic dismissal—then ability counsel’s to argue formulate and for excusal for cause is enhanced. More importantly, the trial court have a complete will more on record apply which to granting deny- standard in Adams-Witt or ing excusáis for imperative cause. This enhanced record is preserve society’s interest in a fair trial. Greater disclosure undoubtedly will also aid both the defense prosecution respective the exercise of their peremptory challenges.
2. Penalty Automatic Death Jurors
Defendant asserts that the trial court abused its dis failing inquire cretion in during the voir dire into whether jurors penalty who favored the death in some cases favored the penalty automatically death if the defendant committed murder juror. will or eliminate him her from Moreover, consideration responses judge juror regarding the trial can question his her of the statute opinion itself, and him or her on various query how hypothetical examples probe might decisionmaking various factors affect a we person’s process. Finally, providing jurors believe that with a concrete and accurate view of the death concerning in New will enable them to answer penalty Jersey their questions attitudes about the death based an accurate of what the portrayal is, law and thus ain to answer free of mistaken put position questions concerning law, notions which be so on review of appear prevalent of this voir dire and so others. transcripts many *18 error, argued, it is the of rape.6 and This affected voir dire every juror supported the prospective who stated that he or she Therefore, in some but not in others. this penalty death cases error, defendant, according poisoned the voir of all dire jurors ultimately jury panel. on the who served argument jurors, on the that premise
Defendant’s rests some they guilty involving rape, if of murder found defendant evidence; mitigating point would unable at that consider sentence, words, in their in favor of the death other would vote rape rejected court be automatic if was involved. The trial this approach, taking position only constitutionally the that the a juror opposed relevant consideration was whether favored or penalty the to such extent that her general death an his or automatic, sentencing issue would be either resolution prospective against. juror for or Instead each was told that the charged “murder, rape, robbery, defendant was with and bur- charges glary,” knowledge if his and then asked of “would way imposition any ... influence their decision as to the of nonimposition question Although death or of death.” this appropriate starting point, an we find that the trial court’s repeated go beyond inquiry refusal to raises serious initial questions ultimately impan- impartiality about elled. challenges jurors also the court’s refusal to ask the whether or 6Defendant juror not the left the with the voir dire themselves impression questions guilty the defendant was of murder and real was therefore only dispute during reject First, over We defendant’s claim. voir dire the punishment. juror asked, trial about his or her court each responded affirmatively, juror Second, stated that he or she to follow the law. each ability apply and that the State had understood that the defendant was innocent presumed guilt proving The trial the burden of defendant’s a reasonable doubt. beyond regarding questioning line of effect of court’s refusal to defendant’s pursue intelligent sound an exercise of death process qualification represents jury can
the court’s discretion. Since a instructed understand properly guilt, nothing finding death is based on a hypothetical qualification prejudice guilt-innocence more, we believe risk phase minimal. Our examination the record indicates ten instances court, which the trial faced with a who favored the death cases, in certain refused defendant’s request inquire whether a rape conviction both murder and could cause the juror to mitigating refuse to consider factors. *19 Bey (II), 123, 152(1988),
As we stated in State v.
112N.J.
jurors
standard for exclusion for cause of
derived from Wither
Illinois,
spoon
510,
1770,
v.
391 U.S.
89 S.Ct.
An of this in ques- the voir is the dire tioning juror Troyano: of During stage jury might THE COURT: ... be [the trial, penalty] deciding with additional evidence and in presented consider testimony be sentence to whether it or be death appropriate imposed, prison sentence, again accordance with the law as the Court I will instruct in that law. you general charges want to remind to the terms as under this you indictment, charge seeking and are under which they murder, State is the death charges burglary. And also of
penalty. robbery, rape charges, these are Now, the defendant is assumed to be innocent merely charges of those until such time the State in the trial of this matter proves guilty charges him or one more those any reasonable doubt. beyond charges way any those affect Would the nature of alone to be your ability guilt sentencing in either the or the a fair and impartial phase this trial? would, TROYANO: I to the best of to remain ability, MR. my try open throughout honest the trial. indicating charges THE of the COURT: Are that the nature would not you affect in that your respect? ability I don’t think Honor. No, would, MR. TROYANO: your they dire of Mr. voir completed Troyano, After the trial court its concerning following colloquy place portion took voir dire. ask, MR. We would we would FISHMAN [defense counsel]: request you ask him does he think that the death should specifically automatically guilty knowing killing was found of a or someone who apply purposeful
a rape. THE that. COURT: I deny just MR. FISHMAN: Your could I indicate for the record that Honor, denying denying are us the information— you question through getting THE are COURT: We went this before and view, you my wrong, right through and I could but that same we went on two question jurors. or three other That is a would have to answer question nothing mitigating and it would because the circumstances are not yes, prove (cid:127) *20 even to him and broached or told that is the law. Judge, MR. are— FISHMEN: you diverting THE are COURT: You and— MR. not—by FISHMAN: — diverting THE it not a fair and that’s actually, question. COURT:— ' asking preventing MR. not that are FISHMAN: us from By question, you getting jurors to whether of those information as this or are any person automatic confronted death individuals when are with a murder penalty they no a And there’s for us to tell that. And there are rape. way many individuals who are. juror THE I ask that whether or not COURT: will any you request they regardless would of death what. And impose automatically oppose, penalty juror, think this not tie it I’ve asked that to but I will with particular up specific burglary, indictment, other counts of the or rape robbery. just things MR. it’s those kind that make them FISHMAN: But of into automatic death people. penalty THE it is not. COURT: Not, MR. is. FISHMAN: It things TflE COURT: It is those kind of that would like to use to make you them into automatic death when are not or penalty they factually, reasonably, death automatic realistically people. disagree INo, with you.
417 Anything further?
MR.
PISHMEN: Not
Honor.
time, your
The trial court’s refusal
questions
might provide
to allow
important insight
any
into
juror’s attitude
a
concerning'
rape
accompanying a murder constitutes serious error. As counsel
asserts,
quoted passage
in the
lawyers
and the court were
prevented from gathering
juror
information about
whether
automatically impose
would
death
a defendant
guilty
found
rape
eighth
murder. Under the
amend
ment,
juror
system capital punishment
our
must consid
er “the character
and record
the individual offender and the
particular
circumstances
offense....” Woodson v.
Carolina,
280, 304,
2978, 2991,
North
428 U.S.
96 S.Ct.
(1976).
L.Ed.2d
previously
We have
stated that “[t]he
sentencer,
judge
jury,
whether
or
has a constitutional obli
gation
unique
to evaluate the
circumstances of the individual
Biegenwald, supra,
defendant.”
(quoting
court the with which to panel insure could fairly undertake role in this its case.
Whether or not the inquire trial court’s refusal to fur regarding ther would, itself, the murder and rape issue compel decide; suffice to reversal we do trial court’s inquiry significant failure to make this compo nonetheless a *21 nent of the deficiencies on which today our result based.7 is alleges 7Defendant also that Truitt, three Mr. Bathurst Mr. Jurors —Mr. questioning Semler —were excluded without sufficient the trial due court to disagree. their to the death We opposition above, As noted this Court penalty. Qualification Death General 3. inadequate ques- that the trial court’s
Defendant contends
very damaging
regarding
qualification
death
were also a
tions
claim,
points
the voir
support his
to
dire.
part
To
defendant
of
Vasanski,
potential juror,
first
Ms.
questioning
of the voir dire general.
trial
quality
The
indicative
Ms.
whether she could consider the death
court asked
Vasanski
imposed
possible
“one
sentences to be
...
penalty as
answered,
stage
required.” She
“Yes.”
sentencing
should a
be
you agree
you
The
then
“Do
will not auto-
court
asked:
regardless
matically reject
penalty
the death
evidence
joined
Supreme
holding
challenge
a
United
Court in
that a
to
has
States
punishment
juror
interposed
regarding capital
or
where his
her views
can be
substantially
performance
prevent
impair
of his duties as a
‘"would
”
Ramseur,
his
State v.
accordance with his instructions and
oath.'
Texas, supra,
supra,
(quoting
at 255
Adams
respectfully---- ... us at [T]here sidebar whether giving she an is automatic because that’s the is yes her, way question put understanding. or whether there a real Based on the entreaties the prosecutor by and a similar one counsel, defense agreed trial court to ask Ms. Vasanski open-ended question: more “I you want to ask whether or not you any opinion any have formed against view in favor orof imposition penalty.” responded: death She “I ha- opinion.” ven’t any formed rephrased question: The court “You any point?” simply haven’t formed replied: She pressed “No.” The court asking given further you “Have it any thought answered, “No, at all?” Ms. I Vasanski haven’t.” Responding request to defense counsel’s for more information regarding might circumstances that the find appropri- ate for the penalty, death the trial the jurors court informed charged “murder, the defendant was robbery, rape, with burglary,” potential juror and then asked each if his or her knowledge charges any way “would ... influence imposition their decision as to the nonimposition death or death.”
Following questions, these rather early tentative the court following settled on the qualification procedure death for Ms. subsequent venirepersons. First, Vasanski and the court presented the possible positions candidate four with he or she might penalty: “you hold on the death may believe that a death jurors determination to exclude these three for cause was well supported record reasonable under Adams-Witt standard. eminently “[y]ou may that a imposed”; be believe
penalty should never always imposed if a defendant is found death should *23 murder”; “[y]ou may penalty that the death guilty of believe cases, others”; “you may not in not proper in some but Next, opinion____” potential juror each formed an have opinion, follow-up questions were to state his or her asked procedure, Based on this Ms. asked on that answer. then based penalty imposed the death could indicated that Vasanski appropriate under circumstances. that, right, up: you then “But feel all
The trial court followed circumstances it you if think or believe under certain that penalty, appropriate impose the death is that what would be indicating?” you’re Yes. MS. VASANSKI: agree THE COURT: would with that view in that would Now, mind, you you, regardless the death evidence present- automatically impose penalty, ed in the case? I Yes, MS. VASANSKI: would. although in favor of the indication, THE COURT: And from are, you your warrant would it, death under certain should facts circumstances, penalty reject death sentence sentence? be able impose prison
you MS. VASANSKI: Yes. procedure objects Defendant to the voir dire because prompted only yes by questions used the trial court led to responses prospective juror provided and therefore or no from a infor- prosecutor neither the nor defense counsel with sufficient Moreover, argues pick jury. defendant mation to an unbiased follow-up ques- repeatedly that the trial court refused to ask requested by explain yes tions counsel order to further dire, independent review of the voir no answers. Based on an heavily find that the trial court relied much too on closed- we adequate questions, ended and on several occasions did not ask inadequacy of the initial follow-up questions to overcome inquiry. nature questioning of Ms. Vasanski illustrates the closed responses elicit inquiry and the failure of the voir dire to opinion or specific
that indicate in terms what Ms. Vasanski’s attitude about the death was. In addition to its closed nature, questions the tenor of the appears often to lead the juror inevitably to the response. “correct” To ask whether she would “automatically impose penalty, the death regardless of case,” the evidence in the predetermine is to answer; indeed without more phrasing careful it is to ask whether a mere capital indictment for murder automatically warrants the death penalty.
Another instance that deficiency illustrates the of the form and substance of the trial court’s voir dire is the questioning of juror Malloy. Malloy Mr. was asked the trial court: “Could you me, please, tell your what is view of the penalty?” death MR. MALLOY: Well, certain only the third. situations,
THE COURT: The third choice?
MR. MALLOY: Yes. THE category COURT: In other are in words, you death *24 be under certain penalty may it proper circumstances, and not be may proper under indicating. other is circumstances, that what you’re
MR. MALLOY: Correct. ____Should guilty THE COURT: knowing find the defendant of a or killing, sentencing stage and a purposeful in this matter required determine if the shall be death or a life sentence as I penalty indicated, knowing just view as indicated on your you’ve of the death imposition knowing and also are penalty, to consider you additional required any concerning evidence sentence to be appropriate is either death imposed, or life in would prison, the death you automatically or would impose penalty imposing reject consider a sentence of life in you the death if prison penalty the facts would warrant that position? MR. MALLOY: Yes. ambiguous
With that most response, qualification death Malloy of Mr. was ended. Not surprisingly, defense counsel sought clarification Malloy’s of Mr. views since he had answer- question ed an yes either/or with a response.8 The trial court 8The or no answers to problem is yes either/or in this questions pervasive troubling questioning case. Other are found in the particularly examples jurors, including several other Mr. Mr. Szmutko, Ms. Mr. Troyano, Reppucci, Puhalski, Mr. Mr. Fiorentino and Mr. Hampton, Marchetti. request
emphatically rejected defense counsel’s because Mr. Malloy's certainly very forthright, “answers were direct and ultimately challenged Malloy perempto- Mr. clear.” Defendant rily.
Despite normally the deference accorded the trial court assessing responses potential jurors, demeanor see Singletary, supra, reading at 62-64 our State N.J. admittedly cold record leaves us no choice but to find that Malloy insufficient information was elicited from Mr. to evalu- properly ate his fitness to serve. Our conclusion does not second-guessing determination, constitute of the trial court’s Malloy’s credibility, juror based on Mr. that the was “forth- clear,” right, finding direct and but rather constitutes a that the yes of the elicited no substance answers to information — general questions category broad and the selection of 3—left Malloy’s both counsel and the trial court Mr. unable evaluate Moreover, jury. paucity fitness to on the serve and narrow- responses prosecutor ness of the left the defense and the both peremptory challenges intelligently. unable to exercise example A support further cited defendant to his claim is prospective juror the voir dire of Reade. The voir dire con- cerning qualification death went as follows: THE before I the death Now, COURT: discuss views on I want your penalty, general charges to review with terms the under this indictment and you they charge, seeking are murder. And under that the death State penalty. charges burglary.
There are other under the indictment of robbery, rape anything charges is there in the nature of those alone that Now, would sitting from as a in this case? prevent you MR. READE: No presented possible trial court then the four death *25 opinions, and asked: THE COURT: ... would tell me views? Now, you please your MR. READE: Number three. just THE tell COURT: And would me what that would mean to you you? MR. READE: in some cases would have to it and in others Well, you impose wouldn’t.
you just THE COURT: let me a little bit further views. Now, explore upon your jury guilt stage guilty Should the in the of the trial find the defendant of a knowing killing sentencing or purposeful and, therefore, is neces- procedure along jurors will be with all the sary, you instructed, other at the of that outset hearing, sentencing as to certain factors to be determined to be the, by considered, certain factors determined, to be considered determining the sentence to be that appropriate should it death or be imposed ineligibility life minimum years imprisonment, parole. juror, during Now, if selected as a would able you’re to consider that you hearing sentencing concerning evidence any presented of those existence factors before make determination as to the you sentence? any appropriate MR. READE: Yes. during hearing, THE Mr. if sentencing Now, Reade, COURT: find that you sentencing
based evidence upon presented, factors support death could the death penalty, you impose penalty? MR. READE: Yes. during sentencing THE On the if hearing, hand, COURT: other from the sentencing find that the
evidence, factors would you a life support sentence, could a life sentence? you impose MR. READE: Yes. voir objected strongly
Defense counsel dire of Mr. stating Reade that “we’ve nothing heard almost from this particular juror yes other requested than no No. 3.” Counsel that the trial court ask Mr. Reade questions regarding more his supported statement that he the death in some cases. emphatically rejected The trial court request this because de- to____” fendant “all you had the information that are entitled Defense counsel then asserted that he had insufficient informa- tion challenge to formulate a for cause. dire, evaluating adequacy of this voir we mindful are [qjuestions prejudice which an invite or admission denial of merely express are, of voir dire because elicit which course, necessary part they may responses challenge jurors general
will allow for cause. such parties However, often fail to reveal or interests ... which cause inquiries relationships may unacknowledged probing unconscious bias. For reason, more inquiry Nourse, (9th Cir.1981).] [Darbin 664 F.2d usually necessary. fully reasoning. Accordingly, We concur in the Ninth Circuit’s we find the examination to have patently Reade been inadequate. Nothing concerning juror’s of substance death penalty views is ascertainable from this record.
Probing inquiries uncovering are essential hidden biases. Despite inadequacies voir dire glaring the numerous of here, jurors identified not all inadequately questioned were —ex- cept respect rape Indeed, with and murder issue. thoroughgoing questioning usefulness of is demonstrated very questioning juror case Stevenson. After the array possible opinions court outlined the on the death penalty, following exchange place: took THE COURT: at this I will ask if Now, would let me point, you you please know what view is on the death based those various— your penalty upon MS. STEVENSON: before this I Well, believed in the death happened, Your Before I Honor. came into this. And —but I feel as I
penalty, that, say, right no one has a to take another one’s life. talking taking THE COURT: In what are a life? respects you about, That an MS. STEVENSON: for an eye eye. THE Do COURT: Oh. mean as far as the accused that— you MS. STEVENSON: Yes. THE That COURT: would be— you MS. I STEVENSON: believe in the death I did. penalty.
THE COURT: You did believe in it before?
MS. Yes. STEVENSON: THE COURT: Do still believe in the death you penalty? Nothing changed MS. STEVENSON: has mind so far. my right. jury, THE All COURT: should the and this Now, is a hypothetical, guilty knowing killing find the defendant course, and a purposeful sentencing stage be in this in other trial, words, to determine the required asking that I’m since indicated would be in penalty, question you, you you assuming favor of the death the facts would penalty, that, correct? support (the head.) MS. nods her STEVENSON: regardless THE COURT: Would the death you automatically impose penalty might of the evidence in this case that of a presented support imposition sentence? Do follow prison you my question? MS. Yes, STEVENSON: mean rather than have a death you sentence, you’d— THE COURT: Would be if the evidence you able, supported position, not vote for a death but to vote for a sentence if instead prison facts that? supported MS. I think Uh, STEVENSON: Honor. so, your right. although THE All COURT: Now, indicated to the Court that you’ve are in favor of the death would should the facts you penalty, able, you reject warrant it, sentence of a death sentence? impose imprisonment MS. STEVENSON: That is so hard to answer. give THE COURT: can me Well, you your— *27 reject MS. STEVENSON: That’s a the idea of death at question and the —I guilty guilty same I feel a be, time has to has to be So what person prosecuted. does that make? right THE COURT: the is a Well, this, have to views as question you your indicated that don’t feel an you’ve individual should the death you impose sentence another upon person. MS. STEVENSON: Another person, yes. THE And COURT: that’s a view. personal MS. STEVENSON: Yes. THE And COURT: are entitled that view. we have the you However, also laws the State of New and as I the law under certain indicated, does, Jersey, jury circumstances, to return a death It permit also that penalty. permits reject same case the that death instead a penalty impose prison sentence. And I’d now, issue that like to find out from is with even you have, views that own views, would be able to follow the you your personal you give sentencing law as the Court will at it to the end of this case in you that law if the phase, it, facts warrant the death apply impose but sentence? penalty, impose prison MS. STEVENSON: Yes.
When expressed defense counsel about juror’s confusion stance, agreed ultimate inquire court whether other charges penal- would affect Ms. Stevenson’s deliberation ty: MS. STEVENSON: I’m it afraid I’m afraid it would, would. yes.
THE You think would? COURT: it MS. STEVENSON: Yes.
THE COURT: Okay.... me ask Well, let this. you charge would fact what the mere that there’s a way rape, unproven stage, and in what that, would do think would affect way your you sitting juror being as a in this case, impartial? girl MS. STEVENSON: I was a little and a friend of mine was when I raped age. And since it’s horrified me. that, years knowledge— THE And feel that because COURT: of that you
MS. Yes. STEVENSON:
THE —that COURT: experience— MS. STEVENSON: closest friend. Very my— THE COURT: Yes. That that would influence this case? you like MS. STEVENSON: Oh Because we were sisters. yes. right, THE All come to COURT: we’ll sidebar. (At time all which counsel and court the bench for approached reporter hearing place) following sidebar conference out of the took Well, way question—
MS. I think we FLICKER: have no THE COURT: Yes. cause, MR. FISHMAN: We would note the strike for but I would also exactly why open-ended questions indicate that this is we think that are is, important just something which we found out which we wouldn’t have obviously extremely important. otherwise known and which you going THE But COURT: also found it out as result of to sidebar and So, discussing “Open, every question you it. that is not the Sesame” to might feel be relevant. proceeded
Had the trial court
consistently
more
in the
fashion,
above
serious difficulties could have been avoided.
The examination of Ms. Stevenson is an excellent illustration of
the vital information that can
probing
be derived from more
Moreover,
follow-up questions.
it highlights the risks of undis
prejudice
especially heightened
covered bias or
when the
—
death
possibility
may
is a
merely
be the result of
—that
*28
administering multiple
choice
juror,
any
exam to a
without
supplemental questioning. Accordingly,
exercising
when
their
wide discretion to control voir
in
dire
death
cases as
by
(1969),
mandated
Manley,
State v.
9Rule purpose determining challenge For the whether a should be inter- posed, interrogate jurors prospective the court shall in the box after the required placing parties number are drawn without them under oath. The attorneys may supplement interrogation or their the court’s in its discre- death, punishable by tion. At trials of crimes the examination shall be drawn, juror individually, made of each as his name is and under oath. attorney-con 10Defendantalso claims that the trial court’s refusal to allow capital reject ducted voir dire in a case warrants reversal. We defendant’s argument. 29-30, Biegenwald, supra, As we held in State v. 106 N.J. at "the permit interrogation trial court's refusal to the voir dire to be conducted Manley, counsel supra, was within the limits of our decision in State v. 54 N.J. 1:8-3(a) Manley and of Rule because both the decision and the Rule are Nonetheless, applicable capital reemphasize especially light cases.” we in — inadequacy of the overall of the voir dire in this case—that trial courts should I, supra, dealing juror Williams N.J. with bias resulting pretrial publicity equally applicable from are to the qualification procedure. death searching The court should consider the of more exhaustive and voir efficacy conducting dire examinations. The court in voir dire should be particularly regarding to the of counsel examination of responsive requests prospective jurors as to bias. The court should consider whether there should be potential greater willingness excusing to resolve doubts favor of the defendant
jurors (footnotes omitted).] [Ibid, for cause. Although the voir poten- dire Stevenson did uncover bias, scope tial we find that the limited of the trial court’s Reade, Vasanski, questioning jurors Malloy was more representative process selection as a whole. This obviously grave conclusion casts doubts on the fairness of the trial. Prejudice
4. Racial court, by limiting Defendant contends that the trial single question to a prejudice, deprived voir dire on racial him rights process of his constitutional to due and a fair trial. Moreover, questioning defendant asserts that the limited prevented intelligently exercising this sensitive issue him from peremptory challenges. his posed query prospective jurors:.
The trial court “De- that, any way, prejudice fendant is a black man. Would or your sitting juror in influence as a this case?” The record reflects, however, that the trial court failed to seek clarification explanation jurors gave ambiguous, from who indefinite *29 responses question. to this
Although “inextricably up the issue of race was not bound trial,” Ross, 589, the conduct of the 424 with Ristaino v. U.S. 597, 1017, 1021, 258, (1976), and the 96 S.Ct. 47 L.Ed.2d 264 “a circumstances of the case did not indicate that there existed the court’s voir dire sensitive to counsel’s especially requests supplement examination. 428 possibility prejudice might that racial or ethnic
reasonable have jury” reaching verdict, Rosales-Lopez its influenced v. States, 191, 1629, 182, 1636, United 451 101 U.S. S.Ct. 68 22, (1981), 30 L.Ed.2d absence racial overtones does not expansive need obviate the to consider whether a more voir Ramseur, supra, dire should be conducted. State See 106 may prejudice easy at 246. Racial be either N.J. blatant detect more or subtle therefore difficult to discern. A probing “yes” voir dire that elicits more than a or “no” response excusing prospective jurors aid the trial court will exercising perempto for cause and will assist the defense in its ry challenges. cogniza When the defendant is a of a member minority group, searching ble a more voir dire should be conducted, Ramseur, requested. if supra, State v. 106 See N.J. at 247-48. Prejudicial Publicity
5. Pretrial Defendant also asserts that the trial court its abused discre- conducting tion by inadequate jurors an of the examination concerning prejudicial impact pretrial publicity. Prior to selection, jury requested change defendant of venue to re- possibility pretrial publici- move the bias as a result of ty. yet The trial court denied the motion had not because it conducted voir dire and therefore had no to ascertain basis pretrial publicity whether had created “the realistic likelihood prejudice” potential (I), jurors. supra, Williams 93 N.J. at 69. prerequisite
A
jury
fundamental
to a fair trial is “a
panel
by prejudice.”
supra,
not tainted
Biegenwald,
State v.
Dowd,
722,
(citing
429 63). expunge To the taint that (I), at supra, 93 N.J. Williams publicity or the disclosure of inflammatory pretrial from results evidence, of trial court has a number the trial inadmissible including change disposal, techniques at its management trial, postponing the re- venue, “foreign jurors,” impanelling trial, participants in the by the straining public statements searching examinations. thorough voir dire use of supra, 106 at 32. Biegenwald; N.J. v. State impar in an society’s protect defendant’s—and To —interest opinion guilt as or trial, “formed an jurors who have tial (I), excused.” defendant must be Williams innocence of the 369, 61; Duyne, 43 N.J. also v. Van 93 N.J. at see State supra, for itself wheth (1964) should determine (appellate tribunal 386 that a new trial prejudicial are so pretrial newspaper stories er 1359, 987, 14 ordered), den., 85 380 S.Ct. cert. U.S. should be (1979) Kozlov, 232, (1965); 239-40 79 N.J. 279 In re L.Ed.2d potentially fails to disclose juror on voir dire (“[wjhere a having regarded may be party ... a prejudicial material however, case, trial”). ignorance of the Total denied fair been v. serving juror. as a State necessary prerequisite to is not “if the may still serve (1980). A Sugar, 84 N.J. render a opinion and impression or lay aside his juror can (quot presented in court.” Ibid. based on evidence verdict 2290, 2303, 282, 302, 97 Florida, S.Ct. 432 U.S. ing Dobbert v. 61; (I), at (1977)); supra, 93 N.J. 344, 362 Williams 53 L.Ed.2d (1971). 123, 143-44 58 N.J. Conyers, v. State are jurors who able distinguish potential In order to from those who are knowledge aside prior put opinions their fashion, must trial court impartial in an to serve unable See, e.g., State potential jurors. probing dire of voir conduct Deatore, Sugar, v. N.J. supra, 23; N.J. State at 104-06. case, jurors were fifty-seven in this
During dire the voir concerning the knowledge any prior they had asked whether previ- have (74%) affirmatively. We case; forty-two answered *31 ously pretrial publicity noted that extensive does not necessar- State v. ily preclude impartial the impanelling jury. an Biegenwald, supra, N.J. We observed Williams 35. in (I), supra, publicized in highly that “even cases the venire will many exposed contain individuals who have not been to the publicity who, exposed, only faintly or if are aware of the Id., 93 N.J. at 66 n. 10. nature the case.” of the voir dire challenging adequacy concerning prejudicial pretrial publicity, effect defendant’s most challenge Fairburn, serious is juror to examination of who had in juror questionnaire indicated his he knowledge that had concerning prior coming the case to the courthouse. The questioned court Mr. on knowledge. Fairburn the source of his responded Mr. Fairburn he that had read more than one news paper article and he that recalled the facts set in forth articles. The voir dire proceeded: reading result,
THE COURT: As a Mr. Fairburn, of those articles over year ago, concerning charges have formed under you any opinion this indictment as to this defendant? MR. I FAIRBURN: think so.
THE COURT: And as a result of that —strike that. juror If were be as a in seated this would be set you case, able to aside you
that or and render a verdict or verdicts in this opinion opinions case based solely on the in evidence this courtroom from the presented stand, witness so forth, oath under and accordance with the law? MR. FAIRBURN: I’m not sure.
THE What COURT: do feel that? your hesitancy, why you strong feelings MR. I had I FAIRBURN: some when read the pretty newspa- accounts. per just THE COURT: What cited in accounts, from that? newspaper MR. FAIRBURN: Yes. anything
THE COURT: facts cited in there or stated there are not during will accurate, the facts that necessarily trial, this presented you just understand that? That’s recitation of facts. newspaper MR. FAIRBURN: Yes. juror, THE COURT: If selected as a will be you’re to render you required your decision, ultimate decision what hear see in case and solely you courtroom and not from other sources. Do understand that? any you MR. FAIRBURN: Yes. be able follow those instructions Court Now,
THE would you COURT: in the in this case what is courtroom a determination presented make upon give facts will and not let those law that Court you newspaper asking That’s what I’m have read influence decisions? you. you may do that? Could you MR. I think so. FAIRBURN: find sidebar, trial out
At defense counsel asked the court read, feelings,” he had by “strong what what the meant any anyone he with about the had conversations whether responded: case. The court go I will he those articles, I will ask what recalls from
THE COURT: he recalls into He can tell us what because further discussion. precisely any through effect would and he satisfied the have, I’ve run what already but facts, he could aside those recollections those you’re Court that lay *32 recalls. entitled to hear what he and We like to what he formed what MR. would know opinions FISHMAN: feelings— strong No. THE COURT: Williams, in State I would cite case Honor, very MR. FISHMAN: Your dealing the effect of the at that we were with Court, and point, Supreme prejudicial said, Handler and I Court, and the Justice pretrial publicity, Supreme page from would 68: quote dealing critical with and indeed, “Another means potential important, of more consider the efficacy latent bias is the voir dire. Court should conducting searching Court, and voir dire examinations. The exhaustive regarding the of counsel voir should be to dire, particularly responsive requests bias____” jurors as to examination prospective potential And I followed those in the examination concepts THE have fully COURT: this matter. through him I have been that. what else? I will not ask his Now, opinions. of those that he referred to, I him his recollection of facts any will ask present questioning. and that will be extent individual just also that in terms of the that publicity ... Can I indicate MR. FISHMAN: that indicated time there was a banner headline incident, occurred at the of this that I believe that is killed his brother in the past, that the defendant had referring to in Handler was even be what Justice may part parcel just gave neglected I the time— I Honor. your say quote juror juror other How I ask this or any THE would you propose COURT: he saw that banner headline? whether asking he formed. him what he did see what opinions MR. FISHMAN: By going recall evidence do from I told I’m to ask what you THE COURT: you articles. those juror has indicated MR. FISHMAN: This more so than that he had anyone strong feelings. jurors THE COURT: have indicated that. Let’s not have a debate about Other jurors juror. other that and this Just ask me would like to be you questions I asked in addition to what have asked. already MR. FISHMAN: What opinions— go THE over I I COURT: I will will the effect that No, opinions. expand just have indicated. setting MR. I also indicate that in FISHMAN: would aside those response everything I and that said, so, he think connected else I think opinions, probing. further requires asking working THE what COURT: This is And impossible. you’re really getting at is never these circumstances with that are so any questions far out and have no relevance. If I were to ask have in every question you asking single juror, the last we wouldn’t have a ask, five me to have been no days way. probing all voir MR. FISHMAN: With due to the this is not a Court, respect dire under the case law. disagree THE COURT: It and I is, with certainly your opinion. The court Mr. he then asked Fairburn what recalled from the newspapers; juror indicated that could not any- he recall thing specific, my with jogging memory, “but some I would recall____ probably feeling have total I remember I almost had about it. I don’t remember the details.” Defense counsel again requested “inquire at sidebar the court what those relented, feelings asking were.” The court “what the strong feelings Mr. “I were.” Fairburn stated: assume from newspaper guilty.” account ... the defendant was Mr. Fairburn “I if then stated believe so” when asked he could *33 previous opinion” “set aside that the and decide case “based solely on the introduced in evidence this courtroom.” Williams, v. State then, challenged defense based on juror for cause: feeling guilty, has that the defendant was and I think that [H]e expressed
this, based on the Handler’s indication Williams, State Justice we could challenge give for ask the cause and Court to us that as Justice Handler leeway suggests. suggests, THE COURT: You had more than the Handler Justice but leeway challenging that isn’t the issue. You’re for and it is denied on the cause, simple ground juror ago, reason that a hasn’t over headlines or your seen, year or articles, read and had formed at that because the defendant them, was time, charged strong guilt with the offense, as to based on those opinion solely allegations, and those statements one-sided would hearsay newspapers, not be unusual for in this read those same articles to who every person county strong strong come to that same and it’s obvious will have a opinion, people is not the test of what read. If can take it their That out of they opinion. they mind and it aside and listen to the evidence here in the Court, lay presented and he indicated to me he could do that. He is law, clearly qualified. You’re denied. MR. FISHMAN: But the Court has indicated that that a this, Supreme capital regular than a case should have more case. flexibility given I it extreme THE COURT: have not flexibility my opinion, maybe but in mine. yours, strongly disagree
We with the trial court’s refusal to colloquy way excuse Mr. Fairburn for cause. This in no demon juror lay impression opinion strates that the could aside his solely presented and decide the case on the based evidence dire, qualification portion Like the death this court. voir sufficiently thorough probing to ascer examination is not strongly potential juror actually per felt. This tain how functory provides juror voir dire no basis to conclude that put preconceptions could his aside. Once it is established that a then, juror exposed pretrial publicity, has been in order to right impartial jury, a defendant’s to an the voir vindicate dire unequivocally potential juror put must establish that the can opinion simply that information or aside. That burden met here. Therefore the trial court abused its discretion.
Following the court’s denial of defendant’s motion cause, prosecution excusal for informed the court that notes, agreed following review of its it with the defense’s plea parties, Despite motion for excusal. from both again rejected prosecution the excusal motion. The trial court peremptorily. then excused Mr. Fairburn This had the effect of curing might error. The what otherwise have been reversible noteworthy, type example is nonetheless as it illustrates required to ensure an questioning that falls short of what is impartial jury. concerning publicity arose dur- problem prejudicial
A similar that her ing the voir dire of Minnick. She indicated *34 knowledge of the case newspaper was derived from articles appeared if, soon after the murder. The court asked articles, having newspaper read those juror had formed an opinion guilt about the or innocence of the defendant. Ms. sense, guess yes.” Minnick answered “I in a right, THE All COURT: and what would that be? opinion guilt. MS. To his MINNICK: indicated, however, put
Ms. Minnick opinion she could her sidebar, impartial. aside and be At requested defense counsel inquire “that the newspa- Court as to what she recalls from the accounts, per specifically concerning the incidents. She said opinion that she guilt. had formed an as to request We would inquire on, that the Court as to what she based that what facts things that she agreed read.” The court if ask she had “a present any recollection of of the facts in those Trenton Times accounts, newspaper go but I any will not into more about her opinion. that, through I went I’m satisfied with her answers.” The recalled: MS. MINNICK: To tell I don’t truth, remember a lot of it. I you really ago,
remember what mean it know, was a and I happened, you very year —I know that I read I it, but don’t remember details, specific know. you generally THE COURT: What do remember about it? you girl MS. MINNICK: That a murdered, and it raped, stabbed, at happened night, and all I that’s remember was what really happened. THE COURT: That’s it.
MS. I Yeah, MINNICK: don’t remember details. really specific agreed, sidebar, The court then to ask if she remembered reading anything about the responded: defendant. She I “Do remember anything concerning him?” Anything dealing THE COURT: that was in those articles with Mr. Williams
specifically. MS. No, MINNICK: the name wasn’t familiar. really sidebar, more, At pressed stating defense counsel for “The question we want asked is any whether she remembers details person about the who was arrested.” gone going THE COURT: The answer is no. I have as far I’mas and I have again trying covered You are sufficiently your inquiry your purposes. *35 something, get refine an answer don’t you care for the you answer particularly and it going go ... satisfies the area of and I’m not inquiry, further. The defense was then forced to excuse her peremptorily.
It appears also that defendant spend was forced to two peremptory challenges additional due inadequate to similar questioning juror juror Puhalski and Fiorentino. Mr. Puhal- ski told the court that he had very followed the case closely in newspaper. Although juror Puhalski was asked spe- what remembered, cific facts he the trial emphatically court refused probe further into exposure how that might impact on the juror’s attitude about the defendant. Denied access type to the necessary information try to establish the necessary prejudice law, under our case defendant used one twenty of his peremptory challenges to excuse Mr. Puhalski.
Juror Fiorentino also indicated that he had read about the newspaper. case Most importantly, he disclosed that he shortly discussed the cases after the murder with daughter, his who Police, worked for the State opinion had formed an concerning guilt. However, defendant’s because Mr. Fiorentino he, indicated that put prior opinion his aside and be (could impartial, adamantly court inquire refused to into the substance of his discussions with daughter. Again, his effec- tively denied the opportunity to establish a record supporting a challenge cause, for defendant exercised another peremptory challenge juror to excuse Fiorentino.
The indispensable voir dire is an mechanism assuring impartiality jury. case, of a In the instant the voir dire was insufficiently probing to fulfill that role. At points, numerous provide it failed to necessary information to enable the challenges effective formulation of for cause intelligent and the exercise peremptory challenges. Moreover, we have identi- questioning fied regarding pretrial publicity at least defense, three instances where the prosecu- and one where the tor, had to peremptory challenges use to correct in the abuses exercise of the trial court’s discretion. inadequacy of the voir dire this case and its effect on utility parties’ peremptory number of both challenges,
when combined with defendant’s loss of peremptory challenge through the trial court’s failure to excuse Pfeiffer for cause, explained below, immediately abridged so defendant’s right impartial jury to an compel as to phases reversal of both proceedings below. Prospective B. Failure to Excuse Juror Pfeiffer for Cause Defendant contends that the trial court erred in failing to *36 excuse prospective juror Pfeiffer, for cause expressed who strong feelings in favor of applying the death penalty in all murder regardless specific cases of the facts. As a result of error, alleged this defendant was forced to peremptory use a challenge to dismiss Ms. Pfeiffer. Defendant ultimately ex- pended twenty all of his peremptory challenges, allotted and his motion peremptories for additional Therefore, was denied. argues defendant that the trial ruling court’s deny- erroneous ing the juror motion to excuse Pfeiffer for cause resulted in the deprivation of right defendant’s to exercise peremptory chal- lenges, which is sufficiently itself serious to warrant rever- agree sal. While we with defendant improp- that the trial court erly juror cause, failed to remove Pfeiffer for we need not question reach the whether deprivation the effective of one peremptory challenge, when the defendant exhausts his full complement challenges, warrants automatic reversal. In- stead, reverse, above, we as noted deprivation because the the peremptory challenge in conjunction perfunctory with the nature of the voir dire deny combined to defendant fundamen- procedural protections tal guarantee impartial a fair and jury panel. Ramseur, supra, 255-56, State v. 106 at N.J.
Court set forth governing the test the exclusion for cause of prospective jurors holding opposed views imposition to the capital punishment. Following the United Supreme States
437 Texas, v. supra, Adams 45, Court decisions in U.S. at 448 100 2526, Witt, 589, Wainwright S.Ct. at 65 at v. L.Ed.2d 418-26, supra, U.S. 849-53, 469 at S.Ct. L.Ed.2d at 105 at 83 847-53, juror’s determined a prospective regard we views ing capital punishment warrant dismissal cause where these “ prevent ‘would or substantially impair performance of his juror duties accordancé with his instructions and his ” 11 Ramseur, supra, State v. oath.’ 106 N.J. at 255 (quoting Texas, 38, 45, Adams v. 2521, 2526, 448 U.S. 100 S.Ct. (1980)). juror’s L.Ed.2d We held that a bias need not Id., proven with clarity.” “be unmistakable N.J. at 256. As the Witt Court pointed out, question-and-answer determinations of bias cannot reduced to sessions which obtain results in the manner of a catechism. What commonsense should experience proved: many simply have realized has veniremen cannot be asked enough questions point to reach the where their has been bias made “unmistak clear”; ably may they these veniremen not know how will react faced when sentence, imposing may articulate, may
with death or be unable wish feelings. 424-25, to hide their true U.S. at S. Ct. at 83 L.Ed.2d [469 852.] A trial court must therefore seek to discover the nature and strength juror’s convictions on basis of a “sensitive appraisal weighing juror’s response.” of a State entire Ramseur, supra, 106 N.J.. at 257. *37 applies juror
The same test against that to a biased imposition juror of the penalty applies death in to a biased favor imposing capital punishment of in all murder cases. Neither dispositive 11Our selection of this in standard Ramseur is of another of challenges defendant’s in this matter. contends that court Defendant the dismissing juror Dagostino, below in cause erred for who vacillated the question capable any imposing penalty of whether she was of the death Although Dagostino open possibility circumstance. Ms. left the that she could impose personally, a death sentence in a case that one involved her such as member,' involving family the murder of a clear she made that she could envisage capital regardless applying punishment in this case of the circum question substantially is no stances. There that such an attitude would have case, impaired performance jury her had she sat on the in this trial and the court's for dismissal cause was therefore correct. capital case penalty phase. A in a fairly serve in the can relating the comply with instruction to be to the must able juror is mitigating If a weighing aggravating factors. result. substantially regard, in this no fair trial can impaired II), Bey supra, 112 N.J. 152. (Bey State questions dire address Juror Pfeiffer’s answers voir ability to capital punishment indicate that her ing her views on substantially aggravating mitigating factors was weigh penalty denying defense impaired pro-death bias. cause, for the trial motion to excuse Ms. Pfeiffer counsel’s court abused its discretion. testimony is The court asked
The voir instructive. trial dire possible attitudes took toward Ms. Pfeiffer which of four she penalty be penalty: death that the death should never circumstances; penal- regardless that death imposed, imposed is found ty always should be where defendant circumstances; murder, guilty regardless imposed in cases but not penalty properly some murder death others; that she opinion or no on the issue. Ms. Pfeiffer stated penalty imposed for all the death should be believed jury explained that the murder convictions. court then “as to certain factors be considered would be instructed determining imposed,” and asked appropriate sentence be any evi- Ms. Pfeiffer she would be able consider whether presented choosing the alternative sen- dence between before thirty imprisonment years with minimum tences of death or life Then, how- ineligibility. responded affirmatively. parole She ever, exchange following ensued: guilty Pfeiffer, THE COURT: should find the Ms. Now, defendant, knowing killing and a murder, murder, I should strike say, or purposeful sentencing stage if the shall be death should be to determine required penalty ineligible knowing view on the life in or with 30 prison years parole, your knowing or a the law that a either death death penalty requires knowing are to consider additional evidence
life sentence, you required any sentencing concerning sentence to be imposed phase, appropriate consider a death sentence would you would you automatically impose *38 imposing rejecting a of life sentence sentence if death imprisonment justified sentencing that was under facts that presented phase? go MS. PFEIFFER: with the death Probably penalty. words, you saying THE COURT: In other are that under circumstances no imposition sentence, you even the warranted the a would that if facts life sentence, impose you automatically impose would a death life sentence? Yes. MS. PFEIFFER: THE And is there COURT: further elaboration me on can tell any you your
feeling would death consider why you impose only penalty life sentence? imposition brought MS. I feel like PFEIFFER: when back they it punishment capital brought should back be as a deterrent. That was be used as a idea, my against deterrent future crimes. THE But don’t do COURT: the fact life you consider, you, sentence ineligibility given and 30 also would be a deterrent under years parole circumstances? guess, just It MS. PFEIFFER: I don’t I would, but know —I would probably think the death would be the proper way. supplied.] [Emphasis indicating automatically she would impose death sentence purposes for deterrence even if the circumstances sentence, disqualified warranted a life Ms. Pfeiffer herself as a juror. responses Her follow-up questions to the demonstrate question that she did twice-posed not misunderstand the court’s imposition on the automatic of the death penalty. Her defense straightforward rational, her attitude was making it clear that would automatically she indeed favor a death sen- tence if knowing the defendant were to convicted of a purposeful killing, regardless of the court’s instructions consider additional evidence.
Having responses, heard these the trial court continued press death-penalty Ms. Pfeiffer for clarification of her clarification, sought views. The manner in which the court however, counterproductive; drawing instead of out Ms. intentions, ques Pfeiffer’s actual views and the court’s further only tions seemed calculated to out draw such answers proceed would her juror. inquiry rehabilitate as a The court’s ed as follows: *39 and that’s view, that be Well, opinion, perfectly THE COURT: may your your having even that be but the issue here is would understandable, opinion, you sentencing and not able to the the evidence in the phase to listen testimony, but that evidence and if that death consider automatically impose penalty, life death, the lesser than that is a
evidence merited warranted penalty for a That issue then be able to vote life sentence? is the would sentence, you just you though strongly would about even feel the death may penalty, you your automatically eyes? shut do No. I wouldn’t that. No, MS. PFEIFFER: would both the In other consider alternatives? words, THE COURT: you sentencing the and if in the You consider death the facts phase would justify in to the of death, were your support position appropriate opinion indicating? for the is that what would vote death penalty; you’re you Yes. MS. PFEIFFER: sentencing if in the hand, THE On other those facts phase COURT: a life is, of the lesser sentence with
would warrant imposition penalty, ineligible for be is that sentence, would able to parole, years you impose indicating? what you’re Yes. MS. PFEIFFER: [Emphasis supplied.] By juror automatically shut asking “just if she would only the “correct” answer eyes,” the court not made [her] clear, weight authority of its unmistakably placed but any unlikely prospective think it behind that answer. We any juror have had the fortitude to offer answer other would juror gave, than one Ms. Pfeiffer even if that intended significant disregard legally evidence so as enhance penalty. expecta- impact of the death Ms. Pfeiffer’s deterrent leading highly heavy-handed ques- responses ble such Moreover, juror. her clearly did not as a fit tioning rehabilitate responses sought, abruptly it hearing the one-word court refusing defense questioning, ended line of later counsel’s this request subject reopened greater clarifica- that the be to obtain an is not approach tion Pfeiffer’s Such conducive of Ms. views. of whether a should dis- to a sound determination cause. missed for death
On
of what was learned of Ms. Pfeiffer’s
the basis
dire,
voir
during
trial
conclude that the
penalty views
we
failing
prospective juror
excuse
court erred
Although
cause.12
deference
normally
accorded the trial
Wainwright Witt,
see
supra,
determinations,
court
in such
469 U.S.
425-26,
S.Ct. at
852-53,
at
852-53,
83 L.Ed.2d at
guarantee
the need to
a fair
trial
death-penalty
case
compels
case,
this result. Even
the ordinary
a trial court
must “see to it
nearly impartial
that the
is as
‘as
lot of
”
Jackson,
State v.
supra, 43 N.J. humanity
will admit.’
*40
death-penalty cases,
158.
In
to guard against any
need
(I),
supra,
prejudice
Williams
all
pressing.
is all the
more
93
at N.J.
case,
61.
In this
far from carefully seeking
guaran-
to
impartiality
tee the
jury,
sought
of the
the court
to
a
seat
clearly
juror.
questioning
biased
Its
probing
aimed not at
bias,
for
possible
sources of
eliciting
programmed
but at
a
response
satisfy
that would
apparently
what
thought
court
were the technical
terms —but not the substance —of the death
qualification
to the voir dire
standard.
approach
Such an
process is
prospective juror
intolerable. Where a
has stated so
clearly that
disregard
she would
the court’s instructions
impose
penalty
murder,
the death
on a defendant convicted of
fairness,
dire,
conducting
12 In
it should be noted that in
the voir
the trial
Ramseur,
court did
supra,
not have the benefit of either our decision in State v.
255-56,
Supreme
N.J. at
or the United States
Court's decision in Wain
Witt,
418-26,
wright
supra,
849-53,
v.
Having
excuse
Pfeiffer
established that failure to
error,
decide whether that
for cause
we are asked to
constituted
Although
Pfeiffer
not ulti
error warrants reversal.
Ms.
did
jury,
expend
a
mately
on the
defendant was forced
sit
her,
ultimately
challenge
exhausted
peremptory
to dismiss
challenges. Defendant asserts
peremptory
his allotment of
challenge
a sub
deprivation
peremptory
of one
violates
regarded as harmless error.
right
stantial
and cannot be
significance
repeatedly
This
has
stressed the
Court
not, however,
It
right
challenge.
has
decided
peremptory
required
challenge
peremptory
whenever a
whether reversal
should
been removed for
is used to remove
who
have
cause.
case,
Bernstein,
(1957), a
prospective juror give failed to accurate that, during accurately, if would tion asked voir dire answered peremptory clearly exercise a caused the defendant to have judg- challenge, perhaps though the Court withheld and would — *41 challenge a point, ment on see at sustained this id. 294—have opportu- of The Court held that defendant’s loss the for cause. juror nity challenge peremptorily to warranted reversal. spoke of Although ordering a trial the court in terms in new right juror peremptorily of the to defendant’s loss excuse (the stemming knowledge of the loss from defendant’s lack bias), turning juror’s potential the case is better understood as juror potentially was allowed to sit on the fact that a biased contrast, case, juror did jury. By in the instant biased not sit. Deatore, (1976), supra, 70 N.J. 105
In at the Court State v. question prospective juror refusal to a that the trial court’s held relationship justified the victim of her with about the extent reversal, fact the defendant chal- notwithstanding the that here, case, In that defendant lenged peremptorily. her ultimately peremptory challenges exhausted his and was denied challenges. additional The Court possibili- never discussed the ty error was harmless. case, Unlike the instant however, there an in indication Deatore that the error was prejudicial;
indeed the exhaustion of peremptories defendant’s prevented challenging defendant from juror a who mentioned employed two relatives as corrections officers. Ibid. Singletary, supra, State v. 80 N.J. we mentioned but did not reach the issue of whether an erroneous failure to cause, juror leading a for expenditure dismiss to an of one of peremptory defendant’s challenges and the ultimate exhaustion challenges, of defendant’s allotment of warrants reversal. The majority found that the refusing trial court had not erred in cause, question dismiss the gravity but noted the the issue: judge Were we of the view that the trial had in fact erroneously deprived challenge, regard a defendant of his contentions peremptory would merit integral serious consideration this Court. is by selection an Jury part Although to which criminal defendant is entitled.
process
every
constitu-
Legislature
sought
do
so,
and this Court have
tionally required
insure
the triers of
will be
fact
“as
‘as
lot of
will
nearly impartial
humanity
”
providing
challenges.
admit’
defense counsel
by
with twenty
As
peremptory
right
challenge
denial of
such, “[t]he
the denial
peremptory
right."
(citations omitted).]
substantial
[Id.
Jacobs,
concurrence,
separate
Justice
position
took the
deprivation
automatic reversal based on the
peremp
of one
tory challenge
needlessly
“would
burden the administration of
justice
grossly
and would
society.”
disserve the interests of
Id.
dissenting
however,
at 65.
justices,
Three
opposite
took the
view,
concluding
one
that “the denial to defendant of the full
range of
by
choice accorded
right
the allowance of the
challenge jurors peremptorily constituted reversible error.” Id.
at 82. The
single
view that the denial of
peremptory
chal
lenge
adopted
warrants reversal has
Appellate
been
Pereira,
434, 438;
Division.
N.J.Super.
(App.Div.
State v.
1985);
People
O’Hare,
757, 758,
accord
117 A.D.2d
*42
478, 480,
den.,
948,
126,
app.
N.Y.S.2d
67 N.Y.2d
494 N.E.2d
(1986)(New
requires
sal erroneous denial where prior completion peremptories defendant exhaust selection). position have also taken the that automatic
Federal courts
challenge
peremptory
from
denial of a
results
reversal
challenges
ultimately ex
peremptory
are
where defendants’
Martin,
See,
e.g.,
1514,
States v.
United
749
F.2d
hausted.
Allsup,
68,
United States v.
Cir.1985);
(11th
566 F. 2d
71
1518
Turner,
535,
v.
(9th
United States
(9th Cir.1977);
558 2d
538
F.
Nell, 526 F. 2d
1223,
(5th
United States v.
Cir.1977);
1230
Boyd,
Cir.1971).
v.
(5th
United States
Cir.1976);
1267
446 F.2d
Brown,
101,
(2d Cir.),
see United States v.
But
104
644 F.2d
369,
S.Ct
den.,
(1981)
cert
U.S.
881, 102
70
195
454
L.Ed.2d
view).
(2-1
taking
opposite
This rule does not
decision
princi
grounds
but on
common-law
“rest
constitutional
ple
impairment
right
is reversible
‘denial
”
v.
Celestine Blackb
showing
prejudice.’
error without
urn,
Swain v. Ala
353,
Cir.1984)
(5th
(quoting
360
750 F.2d
bama,
824, 835,
759,
U.S.
S.Ct.
202, 219,
380
85
13 L.Ed.2d
772
105 S.Ct.
den.,
1022,
3490,
cert.
U.S.
(1965)),
87
472
L.Ed.2d
16,
(1985).
U.S.
S.Ct.
624,
den.,
925, 106
87
695
reh.
473
L.Ed.2d
recently,
it
decided whether denial of
Until
had
been
of a
single peremptory challenge rises to the level
federal
Blackburn, supra, 760
v.
violation,
Celestine
constitutional
360,
long
though it had
clear that
federal
F. 2d at
been
granting
any peremptory
compel
does not
Constitution
Kentucky,
v.
106 S.Ct
91,
Batson
U.S.
79,
challenges,
476
States,
v. United
Stilson
1720,
69,
(1986);
1712,
84
90 L.Ed.2d
68 L.Ed.
28,
1154,
250 U.S.
S.Ct.
583, 586,
30,
(1919);
1156
Sams, 470 F.
See
(5th Cir.1972).
United States v.
751,
2d
generally
Allsup, supra,
v.
United States
We need not decide whether loss peremptory- of a challenge in this peremptories case where all ultimately were would, itself, exhausted warrant reversal. We find instead prejudice may that whatever be attributed to that loss was voir dire compounded by inadequate so as to leave in doubt impartiality jury. the ultimate That combination of discharge errors —the failure leading to Ms. Pfeiffer for cause challenge to the of peremptory loss and the failure to conduct voir dire searching required capital in all requires cases — guilt penalty phases. reversal both the No matter how may guilt, convinced we defendant’s we unless are similarly jury’s impartiality, convinced of the cannot we allow the death be imposed. procedures to When the basic designed cause, impartiality challenges assure that for per — voir dire —are emptory challenges, searching and a improperly applied seriously effectiveness, so as to weaken their combined necessary.13 a new trial is empaneled 13Defendant also contends that because the trial court sixteen jurors case, typically empaneled rather than fourteen in a criminal peremptory challenges court should also have increased the number of allotted parties. Ramseur, supra, This case stands contrast to State v. 106 N.J. at court, having empanel eighteen jurors, in which the trial decided to proportionately peremptories twenty increased defendant’s allotment of from twenty-six prosecution's and the allotment from twelve to sixteen. jury persons. Rule 1:8-2 dictates that a in criminal action consist twelve requirement jurors. specific There is no that there be a number of alternate may impanelling "The court in its discretion direct the of a of such circumstances____” 2(d). appropriate is number as under the R. Rule 1:8— 3(d) peremptories sets the number of most serious criminal cases at 1:8— twenty implication prosecution; for the defense and twelve there no keyed any impaneled presumptive that these allotments are number of 3(d)
jurors. judge authority” "discretionary Rule allows to increase the 1:8— cases, capital require any allotments but does not such increase. Against background, any it is difficult to find basis for the contention outset, by failing, that the trial court abused its discretion award Therefore, peremptory challenges. apart defendant additional from the deficit m.
Prosecutorial Misconduct j court, the trial over defend Defendant maintains that permitted the trial to infect objections, numerous become ant’s *44 inflammatory and testi highly prejudicial, statements ed with innocence, guilt on on but mony that focused not defendant’s the sterling the character. Defendant asserts victim’s admitted, tes “background,” as emotion-laden improperly court life, improperly relating personal and timony the victim’s in an testimony comment on that prosecutor allowed result, contends, jury manner. As a he unduly prejudicial invited, phas guilt penalty in both the and inappropriately es, than based on the victim’s virtues rather to reach a verdict culpability. the defendant’s prosecutor’s comments related
The State maintains that supported by proofs properly admit- to matters that were trial, prosecutor’s comments ted in evidence at and that the appropriate. disagree. We reasonable were therefore phases reversing guilt on we are both Since however, not determine the likelihood grounds, other we need prosecutor’s unjust to an verdict. See that the behavior led Bankston, 18, (1982); 90 30 State v. McCloskey, State v. N.J. 325, (1973); Macon, (1971). 263, 335 63 273 State v. 57 N.J. N.J. Nonetheless, egregious so of misconduct are instances prosecutorial kind we this matter to ensure that this address repeated. excess is not prosecution’s here comments
The issue centers on the during guilt testimony from the victim’s mother elicited testimony purposes of phase of the trial. The ostensible provide background and to demonstrate were to certain facts belonged purse from the Delaware River that the retrieved arising excuse from the court’s failure to peremptories prospective not cause, we the trial court did deprive Pfeiffer conclude that erroneously challenges. defendant peremptory
447 victim, being through latter established an item-by-item purse. identification the contents of testimony This led introduction, to the objections, often over defendant’s strenuous concerning, alia, extraneous information inter the victim’s marriage plans and her in variety involvement of church-relat- prosecutor ed activities. The made considerable mention of these facts implications.during and their her opening and clos- ing phases statements both of the trial. This may conduct prosecutor’s attributed to the advocacy overzealous in the heat of litigation, but it has the same effect would a deliberate plan to induce the to reach a verdict based on the victim’s virtuous character.
It prosecuting is well-established that attorneys, within limitations, reasonable are leeway afforded considerable making opening statements and summations. See State v. 45, (1974); 65 Perry, 413, 47 Mayberry, N.J. State v. 52 N.J. (1968), den., cert. 393 U.S. S.Ct. L.Ed.2d (1969). unfettered, however, This wide latitude *45 subject is only parameters not to the by established decisional law, but ethical considerations as well. See Model Code of Responsibility, DR7-106(c) (1979) (“[A] lawyer Professional shall not: any or allude to matter that he has no [s]tate reasonable is basis to believe relevant to the or case that will evidence”); not supported by be admissible ABA Standards Relating Justice, to the Administration Criminal Standard (“The 3-l.l(c) duty prosecutor justice, is to seek convict”). merely to
Prosecuting attorneys, representatives State, compelled goals justice are to further the of our criminal system. Bucanis, (1958). State v. 26 N.J. 56 This mission accomplished is by conscientiously ethically undertaking and maintaining precarious difficult task of balance between promoting justice achieving a conviction. v. State Rams eur, supra, prosecutor’s at 323. A N.J. remarks and actions must at all times consistent duty with his her supra, Biegenwald, v. State justice is achieved.
ensure that stringently duty to this is 106 N.J. at 39. Absolute adherence v. State death. capital cases where the compelled Ramseur, Rose, supra, (1988); 112 N.J. State N.J. at 324. prosecu- following are some of the remarks made
The guilt phase opening statement: during tor her Bright, religious, for. beautiful, educated, Mitchell had so much to live Beverly taught her church choir. school in the Trenton school a member of Beverly working taught as a education. She was part-time She system. special see, at the Bellevue Care Center to earn some extra You money. receptionist due to be married in 1983. That December day, 30, 1982, Beverly very to work at the and her mother before went Beverly Beverly spent day looking an an Bellevue for Center, day apartment, apart- Care they spent started her and her husband-to-be would share when ment that Beverly Beverly joy, looked to 1983 with such such such new life. forward Beverly hope, Williams, But it was not to be. The James Edward defendant, promise. savagely, changed changed it In a few all of that. He brutally, permanently. all of moments of the defendant horror, Beverly’s unspeakable destroyed unimaginable the defendant all terror, dreams. In a few moments of destroyed (cid:127) living nightmare, the defendant In those few moments of Beverly’s plans. joy, all that all that In those few moments, all of hope, promise. destroyed wedding he Mitchell. She would never live to see her day. destroyed Beverly again, will have ... the total When I have a chance to to you ... speak you savagely, defendant all of how this brutally permanently destroyed picture goodness that was Mitchell. humanity Beverly remarks, of the State’s the defendant At the conclusion mistrial, background arguing that the victim’s moved for a case, plans her future were irrelevant to the and that comments solely and elicit made on these matters to inflame were denied, ruling that passion. The motion was the trial court type The same “background” information was admissible. guilt phase commentary prosecutor’s is found in the summa- tion; moved, unsuccessfully, a mistrial. again defendant sentencing proceeding. Al- pattern during recurred *46 relating to the victim’s char- though objectionable remarks opening plans and future not as numerous acter were prosecu- penalty phase, statement and the summation oblique or inciden- tor’s references cannot be characterized tal, more detailed statements and especially in view of the
449 testimony during guilt phase. These references were nei ther nor People Hope, See v. appropriate harmless. 116 Ill. 2d 265, 41, 45, 108 Ill.Dec. 202, 508 N.Ed.2d (1986) (conviction 206 reversed when highly prejudicial admission of testimony re surviving garding members of victim’s family “[was] brought jury’s to incidentally, attention but in such a manner as permit material”). to to But it Ingram see believe State, 622, Ga. 801, 253 S.E.2d (1984) (general 323 814 back ground of victim held relevant in a trial aof defendant accused murder), den., cert. 478 U.S. his 87 S.Ct. (1985). L.Ed.2d response to recent trend revitalizing toward the vic-
tim’s role in proceedings, many jurisdictions criminal en- have legislation recognizes, fashion, acted in some the victim’s interests. See The Crime Victim in the Prosecuto- Cardenas, Process, rial Pub.Pol’y Harv.J.L. & (1986); see also Ala. Code (1987) (victim 15-14-50 to 57 of a criminal offense §§ present entitled to be at trial and to prosecuting be seated at Code, table); CalPenal attorney’s (West 679 to 679.02. §§ 1988) (enacted “to ensure that all victims of crime are treated dignity, respect, courtesy, with sensitivity”); Fla.Stat.Ann. ' (West 1988) (establishes 960.001 1985 and guidelines for § treatment of justice system); victim criminal Ill.Ann.Stat. (Smith-Hurd 1987) (enacted ch. 38 1403-1408 Ml to "increase justice system effectiveness of the by affording criminal certain rights to basic and considerations ... victims ... violent prosecution”); crime are Mich.State.Ann. who essential 28.1287(751) 28.1287(775) 780.751 to §§ [M.C.L.A. §§ 780.775] (Callaghan 1988) (codifies rights, including right victims’ C.S. Code Ann. impact sentencing); make an oral statement at (Law (establishes 1985) 16-8-1530 Co-op victim's bill § Ann, rights); Laws (1987) 24-15-8.1 -8.2 § S.D.Codified (victim entitled to notification when inmate who convicted of committing felony granted parole, escapes or is released from N. Y.Exec.Law 640-649 penitentiary); (McKinney § 1988) (established for the standards treatment of crime victims
450 system). including the unified court Some agencies, by state impact include crime’s on its gone so far as to states have sentencing among the to be considered factors victim (McKinney 1983 Law 390.30 defendant. N.Y.Crim.Pro See § impact 1988) (establishes requirement of victim statement report). part pre-sentence aas Jersey legislation. has enacted similar See N.J.S.A. New Assist- (establishing -49 Office of Victim-Witness 52:4B-39 to Program ance, Rights Information and Office Victim-Witness Notwithstanding the Advocacy). enactment of Victim-Witness 2C:44-6, inclusion provides for the of a victim of N.J.S.A. which laws pre-sentence report, our criminal impact statement culpability rather than the virtue focus on the defendant Torcia, 3 C. Procedure of the victim. See Wharton’s Criminal 1975). (12th defense may not assert as a ed. Defendants § being human that the was such a worthless victim loss acceptable or least no to the world. latter’s murder was against a Similarly, regard does a crime committed our law person than commit- as more heinous one particularly virtuous qualities perhaps are less against victim moral ted a whose persons apparent. protect The law all noteworthy or exists equally. Supreme Court Maryland, the United States Booth v. introducing impact a constitutionality of victim
addressed the
capital
(VIS)
sentencing phase of a
murder
at the
statement
(1987). The
107 S.Ct.
96 L.Ed.2d
trial.
U.S.
VIS,
description
personal
of the
characteris
which contained a
on
effect of the murder
the victims’
tics of the victims
jury
to focus on the victim
family,
found
cause
Court,
eighth
finding
the defendant. The
rather than
considering
jury from
prohibits
capital sentencing
amendment
VIS,
stated that
jury’s
must be
directed
the death sentence
impose
“suitably
discretion
action.”
capricious
limited
to minimize the risk of wholly arbitrary
so as
of whether
must make
“individualized determination”
...
an
[A]
"tfie
character
executed,
defendant
should be
based
question
individual and the circumstances
of the crime.”
To do
...
otherwise would
create the risk that a death sentence will be based on considerations
that are
sentencing
irrelevant
“constitutionally
impermissible
totally
to the
process.”
*48
(citations omitted).]
107 S.Ct. at
[Id.
at-,
2532,
L.Ed.2d at 448
Moreover,
jury
as fact-finder should undertake its
as
task
dispassionately
possible
being
without
... from-
“divert[ed]
deciding the
on the
case
relevant evidence concerning the crime
at-,
and the
defendant.” Id.
The of admission relating evidence the to personal requires victim’s character or life balancing the of probative proffered value of against the evidence the risk that may pose its admission danger the of undue prejudice or jury. court, confusion to the Evid.R. 4. The trial in its discretion, makes the determination of whether the otherwise Carter, admissible evidence should be excluded. State v. (1982). N.J. The trial empowered court is also to the of restrict use admissible to purpose evidence the for which admitted; it was evidence that is admissible for of purpose the proving a prosecutor, material fact is tool the be to employed bring as a means to prejudicial irrelevant and facts and irrelevant jury. conclusions to the attention of the In this case, mistakenly powers the trial court to failed exercise its to prevent prejudice. undue
Any capital necessarily will testimony trial involve physical evidence, pertaining evidence to the victim. This admissible, though cannot be used in a manner calculated so impassion jury confuse or inappropriately that it intertwines irrelevant emotional considerations with relevant evidence. There are relating occasions when evidence to the victim’s personality may probative aspects character and be of critical trial, e.g., provo defendant’s assertion of or self-defense Where, however, us, cation. as in the matter before vic bearing tim’s has guilt character no the substantive issue prosecution may or the be imposed, not comment highlight only evidence in a manner that serves
on the
jury.
virtues in
to inflame the
victim's
order
nothing
quoted
length
passage
The
above contains
determining
guilt
the defendant's
would aid
Rather,
inflammatory
likely
could
innocence.
statements
only
unduly prejudicing
jury against
defendant
result not
confusing
its
should
also
it over whether
deliberations
but
sterling
influenced
character
the victim. There
no
capital
place
prejudice.
in a
case for such confusion and
clearly improper and should have
prosecutor’s remarks were
jury properly
and the
been stricken from the record
instructed
disregard
them.
Bucanis,
acknowledged
every
State
that not
devia-
we
legal prescriptions governing prosecutorial
from the
con-
tion
26 N.J. at 56. To
justify
duct warrants
reversal the
reversal.
*49
prosecutor’s
“clear[ly]
conduct must have been
and unmistak-
abl[y]” improper,
improper
and the
conduct must have resulted
right
prejudice
in
to the
fundamental
substantial
defendant’s
to
Id.
jury fairly
persuasiveness
case.14
have a
assess the
of his
Nonetheless,
56.
this Court has been neither indecisive nor
at
to
where
hesitant
reverse a conviction
a defendant's constitu-
abridged
rights
glaring,
tional
as the result of
have been
espe-
unequivocal
prosecutorial
evidence of
misconduct. This is
cially
capital
severity
true in
where the
cases
requires
nothing
permitted
underlying
that
to
the
undermine
is done. See State
objective
justice
our
that
task—to ensure
objection
14An additional
is whether a
has been made
consideration
timely
to
counsel,
defense
a defendant will not be heard
claim
by
"ordinarily
objection
prejudice if defense
does not
and
counsel
interpose
timely
proper
(citations
Bucanis,
v.
With
prosecutor’s remarks,
the
the
per
mitted over defendant’s objection,
questions
raise serious
about
jury’s judgment
whether the
was “suitably directed and limit
during
penalty phase.
ed”
the
Maryland, supra,
Booth
-,
U.S. at
S.Ct.
Conceding any capital prone case will be to emotional displays by giving testimony, surely those it is much to not too expect require and officers the court conduct them- resorting improper jury’s selves without to appeals constitutionally required emotions. It is juries capital impose trials reach a a penalty verdict without inordinate exposure unduly prejudicial, inflammatory commentary.
454 admittedly from purge successfully such comments
Failure to unacceptable risk that emotion-charged proceedings creates the arbitrary capricious imposition of the what result is will at-, supra, 482 penalty. Maryland, death Booth v. U.S. 2532, at 448. 96 L.Ed.2d S.Ct. aspects prosecu- other Defendant further asserts that guilt penalty phases throughout tor’s conduct both the prevented receiving defendant from a fair proceedings the trial of the sixth amendment of the United States trial violation Constitution, I, paragraph 10 of the Constitu- and article State (1) support In of this assertion defendant maintains that: tion. penalty phase at the close of the prosecutor’s summation from improperly to draw an adverse inference invited testify, thereby vitiating defendant’s the defendant’s failure to self-incrimination; (2) right against the State’s fifth-amendment “parasite as a “cancer” and a characterization of the defendant (3) upon society” improper, and the State’s comments regarding veracity credibility of defendant’s witnesses prejudicially erroneous. Defendant maintains that these were er- examples prosecutorial misconduct constitute reversible ror. attorney mandatory prosecuting if the has
Reversal is testify unambiguously attention to defendant’s failure to called right. in exercise of his fifth-amendment constitutional See 1229, 14 California, 380 U.S. 85 S.Ct. L.Ed.2d Griffin (1965). prosecutorial comments on defendant’s Not all however, In testify, compel this result. United failure to U.S.-, Robinson, 108 S.Ct. 99 L.Ed.2d States v. asserted, statement, (1988), during closing counsel his defense permitted defendant to recount that the Government had not response, prosecutor com- his version of the facts. during that defendant could have ex- mented his summation plained story jury. The court found no fifth amend- his violation, concluding as in this case the ment that “where testify prosecutor’s opportunity reference to the defendant’s
455 response by counsel, is a fair to a claim made defendant or his we privilege.” at-, think there is no violation of Id. 108 869, at at S.Ct. 99 L.Ed.2d 31.
The record before us is any devoid of indication that the State improperly referred to defendant’s silence at The trial. State’s summation at the penalty phase, close in which the State commented that defendant had no shown remorse actions, was, most, about his response direct to defense summation, counsel’s which asserted that defendant was indeed remorseful, by as testified to one of expert defendant’s witness es. As such the State’s comments were properly directed to evidence, admitted not defendant’s testify. failure to easting State’s comments aspersions on the veraci ty credibility similarly defendant’s witnesses were not improper, two since witnesses they admitted that had perjured grand themselves jury. Moreover, before the there discrepancies were between testimony police officers and defendant’s physical apart witnesses over the appearance of an frequented by ment defendant. The overstep State did not permissible bounds of drawing conduct jury’s attention in testimony inconsistencies questioning and therefore strength of defendant’s case.
However, the State’s reference to defendant as “can parasite cer” “a upon society” troubling, especially when cumulatively viewed during phas with the State’s conduct both es of the Supreme trial. Both the United States Court and this improper Court have criticized references defendant as an 180, 168, “animal.” v. Wainwright, Darden 477 U.S. 106 S.Ct. 2464, 2471, 144, Wilson, (1986); 91 L.Ed.2d 156-57 v. 57 State (1970). Jersey N.J. New repeatedly courts have also objectionable condemned the use appellations of similar Siciliano, (1956) describe defendants. State N.J. (criticizing Stewart, boy”); use of “butcher State v. 162N.J.Su per. 96, (App.Div.1978) 102-03 (prosecuting attorney’s descrip punk” tion of “young condemned); defendant as State v. Von *52 509, “hood,” (use of (App.Div.1963) 516 Atzinger, N.J.Super. 81 error); Bruce, plain “punk,” v. 72 “bum” constituted State (App.Div.1962). N.J.Super. 251 attorneys prosecuting derogatory Again, we caution name-calling will not Mindful of the rhetorical be condoned. invariably litigation, nonetheless excesses that attend we in their strongly prosecutors circumspect to be zeal- admonish Although efforts to win convictions. our courts numer- ous prosecutorial displeasure noted with excess- ous occasions have es, of expressions it is evident that these dissatisfaction have improper failed to eliminate conduct results constitution- play. fair deprivation al violates established notions of' See (1974). Spano, As this Court cau- State v. 64 N.J. prepared more Spano, tioned in State v. we are to take severe required capital to ensure trials are conducted action as improper questionable without resort to remarks tactics prosecuting attorneys. the Id. 569. State’s
ÍY. Penalty Jury Phase Instructions trial A few words remain to be said about the court’s phase proceedings jury to in the of the instructions the above, supra As stated at 407 court’s instruction below. governing weighing aggravating mitigating of factors holding Biegenwald, supra, our v. contravenes State make that in at 53-67. The instruction must clear order N.J. imposed, aggravating to be factors a death sentence outweigh the beyond must found a reasonable doubt to mitigating factors. sentencing charge concerns problem
A second with the explanation mitigating factors and their the trial court’s (II), sentencing Bey In in the determination. role State although acknowledging that the trial supra, N.J. at 168-70 according any obliged jury is not to frame instructions court formula, particular we noted that trial court is bound to explain adequately significance of mitigating function meaning factors and the of the factors on which defendant explanation relies. This is critical to ensure that there is no possibility jury misunderstanding reasonable proper application mitigating Id., factors. at 169.
Here, II, in Bey charge trial court’s the jury was inadequate, merely for it applicable recital of the sections 2C:ll~3c(5)(d) (intoxication), -3c(5)(c) (age), N.J.S.A. -3c(5)(h) (the factor). such, mitigating catch-all charge As explanatory language guide was devoid and assist the in its impose determination of penalty. whether the death *53 guidance, the absence of such there is the likelihood or at least possibility jury might a reasonable that the misunderstand the meaning factors, mitigating function and of resulting in the arbitrary capricious risk of an and death sentence. Id. at 169. Neither the federal nor the state Constitution allows the accom- however, modation of this unnecessary, risk. We find it decide whether adequately explain this error —failure miti- would, gating alone, standing require reversal. factors — sum, In guilt both penalty phase proceedings the and of the must be trial below reversed. The court’s failure assure the of impartiality jury inadequacy due to the the of voir dire peremptory challenge require and of a defendant’s loss reversal Furthermore, phases. of both instructions issued to sentencing in phase concerning weighing aggra- of vating mitigating require factors were erroneous and also reversal. judgment of are conviction the sentence death
reversed, proceedings and the cause remanded for consistent opinion. with
HANDLER, J., separate concurring opinion. filed J.,
HANDLER, concurring. defendant, Edward capital-murder appeal, James purposeful murder Williams, knowing and was convicted of the in to death. I concur Beverly Mitchell and sentenced conviction and the defendant’s murder Court’s conclusion that I with agree part must reversed. While death sentence Court, separately I write the essential conclusions sentence, my of the conviction and point out that reversal view, required for additional reasons. is
I. capital-murder fol- appeal one several cases that This decisions, Biegenwald, v. lowed the Court’s initial State remand, (1988), (1987), appeal 110 N.J. N.J. 13 after Ramseur, (1987), in which the Court held 106 N.J. State act, Jersey’s capital murder-death N.J.S.A. New 2C:ll-3, substantially requirements. Its satisfies constitutional however, myriad circum- finality. There are holdings, evade death-penal- constantly affect the critical issues stances presents regularly new and ty prosecutions. Decisional law standards, demographic applications capital-murder varying us data continue to inform about the evidence statistical guided penalty, and the absence of ramifications of death review creates a prosecutorial proportionality discretion and factors gaping penalty jurisprudence. in our These void death doctrine, reshape perceptions our of constitutional serve to *54 recon- murder, constant mandate capital and the law of unsettle death- issues. Because capital murder-death of sideration flux, my position I to adhere to penalty law remains in continue statute, applied, death-penalty as enacted and violates that the v. and fundamental fairness standards. State constitutional 40, (1988) (Handler, J., concurring Gerald, and 113 48 N.J. (1988)(Handler, J., Zola, 384, dissenting); 112 391 v. N.J. State impor- necessary I and concurring dissenting). it is and believe justify position. this explain the reasons that tant to
459
Ramseur,
345, 382-404,
supra,
State v.
106
at
N.J.
I
asserted, among
positions,
other
capital-murder
that the
statute
be
should
held to
this
requirement
violate
State’s constitutional
process
of due
prohibition against
pun-
cruel and unusual
ishments, as well as standards of fundamental fairness. Arbi-
act,
trary
view,
enforcement of
my
in
in
derives
substantial
measure from the statute’s broad definition of capital murder in
application
combination with the
aggravating
of
factors that
vague, susceptible
are
varying interpretations
and fail ade-
quately
guide jury
discretion both
defining
the class of
death-eligible defendants and in
imposing
penalty.
ultimate
acknowledge
Ibid.
I
that the Court has moved in the direction
reducing
some of
shortcomings
these constitutional
by nar-
rowing
see,
somewhat the
of capital-murder,
definition
e.g.,
Gerald,
State
supra,
clarifying
v.
governing
the standards
factors,
aggravating
see, e.g.,
Ramseur, supra,
State v.
but the
my view,
See,
gaps,
constitutional
e.g.,
remain wide.
State v.
Gerald,
40,
supra,
(Handler, J.,
113
concurring
N.J.
48-56
dissenting);
Rose,
454,
(1988)(Handler,
v.
112
State
N.J.
481-87
J.,
stressed,
dissenting).
also,
I have
the absence of
guided prosecutorial
statutory
discretion in this
framework can
only
arbitrary,
unconstitutional,
lead
to the
and thus
enforce-
(II),
ment of the
Bey
(1988)
act. See State v.
112 N.J.
131
(Handler, J.,
Koedatich,
dissenting); State v.
112 N.J.
276
(1988)
J.,
(Handler,
dissenting);
Ramseur, supra,
State v.
(Handler, J.,
Further,
N.J. at 404-08
dissenting).
while the
appreciates
Court
urgency meaningful propor-
the need and
review,
tionality
Koedatich,
see
supra,
State v.
N.J.
258-59, the continuing absence
proportionality
review within
statutory
is a
scheme
fatal constitutional flaw because
there
no
way
other
under
arbitrary
the statute to correct an
discriminatory
Gerald,
death
supra,
sentence. State v.
(Handler, J.,
concurring
dissenting);
N.J. at
State
Ramseur,
(Handler, J.,
supra,
dissenting).
I urged an adopt express Court enhanced applied standard of review that can eapital-mur-
460 prosecutions,
der a standard that particularly would address unique capital-murder issues of a case without inadvertent- ly unnecessarily distorting or principles govern other (I), (1988) criminal Bey cases. See State v. 52-65 N.J. (Handler, J., concurring). standard, Under this enhanced engage record, in searching courts should review of the trial error, finding apply and on a different and stricter measure for determining whether the error is I reversible. Ibid. reiterate crime, dealing capital prosecution that we are with of which fundamentally implicates community values that can be brought only through to bear jury. the deliberations of the It imperative process appellate is therefore invoke review jury’s that directs attention to the responsibility, deliberative simply rather than one that examines its conclusion. State v. Zola, (Handler, J., supra, 112 concurring N.J. test, it, dissenting). The as I primarily view must concern itself impact with the direct and indirect of trial-level events on the and, jury particularly, presenta- itself with fairness of the tion and consideration of capital evidence. Such a test in cases must be more critical and than appellate conventional incisive review, ordinary strongly which in the by case is influenced pragmatic salvage conviction, desire consequently concentrates its criticism on the ostensible correctness of the verdict. “plain Unlike the conventional “harmless error” or “unjust analyses, error” or result” appellate which the court looks to changed whether the error contributed to and indeed itself, the verdict the enhanced standard concentrates on the and, intrinsic fairness prosecution, especially, of the overall fully engage whether the was able unfettered deliber- ations question capital untainted error. The in a murder appeal whether, error, thus should the face of the State prove beyond can a reasonable doubt that no there was realistic prejudicial likelihood that the error had a influence effect on jury’s (II), guilt. deliberations of Bey supra, State v. (Handler, J., dissenting). N.J. at 131-44 *56 considerations, differences, well These as substantive bear disagreements my majority with Court this case. The grounds appeal this has found other than those of constitu- statutory invalidity tional or for the reversal of defendant’s capital-murder conviction and death sentence. These relate to inadequacy of the voir dire and jury selection and to prosecutorial respect misconduct with to the and introduction of to reference inadmissible evidence. I do not differ from grave Court impanelling error attended the of the and prosecutorial particular opin- treatment my evidence. In ion, however, each of these trial deficiencies separately would independently and warrant reversal of the sen- conviction and tence.
II. failing Defendant contends that the trial erred in court Pfeiffer, prospective juror excuse for cause expressed who feelings strong of applying penalty favor the death in all regardless specific result, murder cases of the facts. As a defendant was forced to a peremptory challenge use to dismiss Pfeiffer, Ms. ultimately expended twenty all of his allotted peremptory challenges. agree fully
I with juror the Court that Pfeiffer’s answers questions ability voir to weigh aggravat- dire disclosed that her ing mitigating substantially impaired by factors pro-death penalty indicating bias. In that she would automati- cally impose a death purposes sentence for deterrence if even sentence, the circumstances warranted life Ms. Pfeiffer indis- putably juror. demonstrated her unfitness as a to serve Ante at expressly unequivocally 437-39. Court rules “on the learned Ms. basis what was Pfeiffer’s death during dire, penalty views the voir the trial court erred in ... failing juror excuse prospective for cause.” Ante 440-41. finding despite the trial court erred the fact that jury, majority
Pfeiffer never did sit on the thus acknowl- edges significance right peremptory challenge. of the of a finds, further, prejudice may It that whatever attributed compounded by a inadequate that loss was voir dire so as to impartiality jury; leave in the ultimate it doubt is the discharge combination of errors —the failure to Ms. Pfeiffer leading peremptory challenge for cause to the loss of a and the searching required capital failure to conduct the voir in all dire requires guilt cases—that reversal of both the Court, however, phases. at 445. The Ante chooses not to question wrongful deprivation reach the whether the of one peremptory challenge, when defendant exhausts his full *57 complement challenges, warrants I reversal. would address ground. that issue and reverse on that recently This Court noted that under the Federal Constitution it is not reversible error to fail to excuse for cause a who peremptorily is thereafter dismissed a defendant ex who peremptory challenges all long jury hausts his as the “[s]o impartial....” (II), Bey supra, sits is 112 at 154 State N.J (citing Oklahoma, U.S.-,-, 2273, Ross v. 487 108 S.Ct. 80, (1988)). however, posited, 101 L.Ed. 2d 90 The Court a sliding against prejudice scale which to measure the of the wrongful peremptory challenge. recognized denial of a It “forcing peremptory challenge a defendant to a waste could force defense counsel to more cautious in the be exercise of remaining peremptories,” expressly admonished trial courts particularly capital to “be sensitive in cases to defendant’s right complement twenty full peremptory challenges.” to a 112 approaches Ibid. N.J. at 155. “As the defendant exhaustion her peremptory challenges," his or the Court continued, increasingly “the trial court should become sensitive possibility prejudice to the from its failure to dismiss the juror for cause.” Id. at (emphasis added). (II),
Despite the indication in Bey supra, that the standard sliding prejudice involved scale on which would be reached exhausted, peremptories all majority when have been here seemingly adopts jury-bias operative standard as the test for approving its reference to This can be inferred from reversal. v.,Oklahoma, name- supra, as formulated in Ross the standard long jury impartial,” that sits is not ly, that “[s]o peremptory challenge prejudicial not wrongful denial of a at-, at 108 S.Ct. L.Ed.2d reversible. U.S. suggested by the that the It also is Court’s insistence 90. crucial inadequacy of voir dire is a factor contribu- concomitant ting potential jury. of the bias analysis. I strongly disagree approach
I with the Court’s entirely illusory posit jury-bias think it is test for determin- peremptory ing significance wrongful of a denial of a noted, prejudice only if challenge. As under that test occurs bias, however, impartial.” Jury jury “the that sits is not Ibid. adequate if provable, almost never be at least there is voir will impanelled not jurors It is self-evident that who are will dire. cause, cause presumably excused for because such have been definition, then, possible it By had not been shown. will be defendant, objecting wrongful denial of a for a challenge, impanelled jury that the is “not peremptory to show impartial.” dire,
If, hand, inadequate has voir on the other there been may readily presumed and the deficient resultant bias for reversal. The dire itself could be a sufficient basis voir posture case peremptory challenge of a denial *58 nothing peccadillo. procedural but a becomes however, challenge, surely is not peremptory The denial of a trivia, peremptories all have particularly a matter of trial when analysis particular An that trivializes this error been used. misperceives objectives proper jury of selection. Unfortu- the by just does that. nately, jury-bias the test endorsed this Court wholly appreciate that the ultimate jury-bias The test fails The a combination of values. object jury of selection embraces of reasonable goal parties, is to enable the within bounds procedure, to select by as determined our rules of practicability further, among and, from impartial jurors to select fair 464 jurors party’s perception
such those conform to who each of jurors especially are suited to who determine the issues particular being key case to the tried. selection of such Brunson, jury peremptory challenge. is the State See v. 132, However, (1985). case, 136-38 point N.J. in this of the peremptory challenge By concentrating lost. solely is attention bias, jury on the dire and espoused by voir resultant the test wrongful peremptory challenge the Court treats the denial of a virtually as irrelevant.
Thus, jury meaningful is bias as such not a standard and determining significance cannot be critical test for ato wrongful of deprivation defendant of a peremptory chal- lenge. I submit the standard should be whether the defendant unfairly deprived opportunity, through of the exercise peremptory challenges, jury secure that consists not only impartial impanelled qualified persons in accordance selection, governing jury with the rules but who are otherwise satisfactory and suitable to the defendant.1 is suggestion
There
some
jury
our cases that
bias is
important, if
dispositive,
determining
not
wrong-
whether the
deprivation
challenge
ful
peremptory
prejudicial
See,
justifies
Bernstein,
e.g., Wright
a reversal.
v.
465 (1976), Deatore, 100, 105 In v. 70 N.J. relevant. State ques held that the trial court’s refusal to example, the Court relationship the extent of her prospective tion a about reversal, notwithstanding the fact that justified with victim case, In challenged peremptorily. her the defendant challenges here, ultimately peremptory exhausted his defendant indicated that challenges. Court and was denied additional the exhaustion of prejudicial the error was indeed because challeng from peremptories prevented defendant’s defendant employed relatives ing subsequent juror who mentioned two as corrections officers. in jury-bias as a viable test
Regardless of the relevance cases, Bernstein, ordinary supra, or e.g., Wright civil v. Deatore, cases, it cannot serve as e.g., supra, v. criminal State presence of actual bias or capital the standard in á case. The impanelled possibility potential or latent bias even controlling the exclusive or consideration jurors cannot become capital-murder prosecu- assessing the inherent fairness of a tion. noted, suggested by jury-bias test is Ross v. Okla
As
-,
2273,
homa,
L.Ed.2d 127 which compulsion for us to follow There is even less decision. Supreme Court Ross.
466 application misguided
The
of
our
Ross to
law is
and unfortu
nate because
itself represents
Ross
a dramatic retrenchment
by
Supreme
just
ago
from
view taken
year
Court
a
648,
2045,
v.
Gray Mississippi, 481 U.S.
107
95 L.Ed.2d
S.Ct.
(1987).
Gray, majority
622
a
of the Court rejected as
“unpersuasive”
argument
that the erroneous exclusion for
of death-scrupled juror
cause
was harmless
because
State
peremptory challenge
retained
that
it could have used to
juror.
excuse the
As the Supreme
Gray,
Court stated in
“the
inquiry
composition
relevant
is ‘whether the
of
jury panel
possibly
as a whole could
have
by
been affected
the ...
2055,
at 637
665,
error.’”
95 L.Ed.2d
Id. at
107
at
S.Ct.
(quoting
Estelle,
56,
(5th Cir.),
Moore v.
670 F. 2d
(specially
58
den.,
concurring opinion),
1111, 102
cert.
458 U.S.
S.Ct.
(1982)).
position,
L.Ed.2d 1375
contrary
Ross Court’s
which
exclusively
focuses
on the
impartiality
given
actual
of a
jury, simply ignores
process-related
the due
argument
that
“everyone
that
trial judge
concedes
could
arbitrarily
away
take
one
peremptory
Yet,
defendant’s
challenges.
is in
exactly
happened
effect
what
here.”
v.
Ross Okla
homa, supra,
at-,
487 U.S.
at
S.Ct.
101 L.Ed.2d
J.,
(Marshall,
dissenting, joined
Brennan,
at 92
by
Blackmun,
Stevens, JJ.).
The Court in this case should conclude that an erroneous
cause,
juror
failure to
dismiss
for
leading
expenditure
an
one
peremptory challenges
defendant’s
and the ultimate
exhaustion of
challenges,
defendant’s allotment of
warrants
(1979),
reversal. The
Singletary,
Court
State v.
The view that
the denial of a
adopted by
Appellate
warrants reversal has been
Division.
Pereira,
supra, 202 N.J.Super.
488;
State v.
v. Ham
State
*61
mond,
O’Hare,
supra,
N.J.Super.
People
590;
accord
v.
107
den.,
757, 759,
app.
478, 480,
117 A.D.2d
498
67
N.Y.S.2d
948,
126,
(New
(1986)
N.Y.2d
494 N.E.2d
502
1041
N.Y.S.2d
requires
York court rule
reversal where erroneous denial of
challenge
prompts
peremptories
for cause
defendant to exhaust
selection). Further,
prior
completion
while the Su
preme
now adheres to the
that the Federal Constitu
Court
view
rule, see,
e.g.,
Ross
require the
tion does not
automatic reversal
Oklahoma, supra,
v.
a number of federal courts have taken the
position that automatic reversal results from the denial of a
challenge
peremptory
peremptory challenges
where defendants’
See,
Ricks,
e.g.,
United
v.
States
ultimately
are
exhausted.
776
U.S.,
(4th Cir.1985),
King
F. 2d 455
cert. den. sub nom.
v.
479
1009,
650,
(1986);
U.S.
107 S.Ct.
United States
S.Ct. L.Ed.2d urging position peremptory that the denial of the error, these circumstances is I reversible need do no more than adopt adapt analysis Singletary, Justice Clifford’s su- Here, case, pra, 80 55. as in the Singletary N.J. the trial court cause, erroneously juror thereby forcing failed to excuse a expend peremptory challenge defendant to to dismiss that here, juror; in Singletary, ultimately defendant exhausted i.e., peremptory challenges, twenty, his allotment of entitled to was, effect, nineteen; here, he accorded but as stressed Singletary, “[tjhat Justice Clifford in ... is the rub.” 80 N.J. at 69. infringement legislatively granted diminution of or Any upon [the] opportunity excuse defendant of as fair a trial as our [to any peremptorily] deprives argument agree, rules Defendant’s with which I is that his claim permit. here, guarantees of error derives from his due and from our standards of fair process springs legislative grant whereas his entitlement
trial, relief from the challenges right and his which he was denied. [Id. twenty peremptory thereto, (Clifford, (citations dissenting) omitted).] at 71 J., analysis right What this underscores is that a defendant’s challenge peremptorily impartial qualified even jurors belongs one exclusively party. to the Its function is not to supplement complement responsibility the trial court’s *62 cause; nor, jurors safety excuse for is it intended to abe net to failing unqualified catch the court’s error in excuse juror. to an “Purity right of the by impartial jury to be tried an is so zealously guarded may peremptory that an accused covet his challenges ‘spend’ them as he alone sees fit....” v. State Morrison, (Mo.1977). dispute 557 446 No one S. W.2d can that “in twenty a criminal case ... defendant is afforded opportunities any peremptorily excuse venireman a—for reason, reason, good a bad or no reason at all...” v. State (Clifford, J., Singletary, supra, dissenting). 80 at 74 N.J. But Gilmore, (1986)(prosecutorial State v. 103 508 exercise N.J. cf. peremptory challenges of based on race violates defendant’s right impartial jury).
469 (II), supra, v. I Bey State stressed that the erroneous cause, by juror refusal the Court a to excuse for which forced peremptory challenge, the defendant to exercise a “harm is not depend less” does prejudicial exclusively nor its effect whether a peremptory challenges. defendant has exhausted his (Handler, J., 142 at I dissenting). emphasized N.J. every a peremptory challenge time is juror “wasted” on a who cause, should been have excused for the calculus is with altered respect panel to the rest of right the defendant’s to his complement challenges full abridged. is chal Peremptory lenges usually during are jury exercised the course of selection jury composition. with no clear sense of the overall State Cf. Morrison, supra, challenges 2d (peremptory at 446 S. W. respect jury” light with to a “struck in are exercised of the composition of the qualified jury panel.)2 entire Each exercise peremptory subsequent of a entails the risk that venireperson a qualified who during would for cause later the voir dire by challenge could not peremptory be removed a because expenditure challenges; earlier of such the defendant cannot weigh others, intelligently potential juror against making each peremptory challenge greater gamble exercise each Indeed, understood, and a more fateful decision. this was understated, though by (II), supra, Court in Bey State v. when it observed that forced defense counsel “to waste” peremptory challenge “be in must more cautious the exercise of defendant, remaining peremptories.” N.J. 155. effect, potentially treat of peremptory must each use his last peremptory. case, posed jury system, 2In that the issue was in the a struck context of challenges potential completed, which the dire of the is are voir for cause court, venireperson qualified jury trial then decided preliminarily qualified venirepersons of the service in the instant case. All panel subject challenges by peremptory
return as a
and are then
prosecution
opportunity
peremp-
defendant
who have
exercise these
tory challenges
light
composition
qualified
panel.
total
Ramseur, supra,
See
N.J. at
State v.
239-43.
*63
ex-
peremptories were
question of whether
Arguably, used, may
hausted,
they
not be
in what order
were
or
case,
Nevertheless, in
the error
this
controlling significance.
fact,
did,
all of his
in
use
the defendant
extreme because
Thus,
case,
in
Justice Clifford’s
challenges.
peremptory
view,
“[a]ny diminution of
this issue:
analysis, my
controls
granted opportunity
infringement upon
legislatively
[to
challenges] deprives
complement
peremptory
a full
exercise
permit.”
v.
fair a trial as our rules
State
of as
defendant
at 71.
supra, 80 N.J.
Singletary,
weightier in the
Moreover,
are
these considerations
even
jurors must be
capital-murder prosecution because
context of a
death-qualification
criminal trial
death-qualified. In this kind of
a
and additional
guilt phase constitutes
substantial
prior to the
challenges; it effec-
peremptory
on the exercise of
constraint
peremptories by
complement of
tively
a defendant’s
reduces
prospective juror’s possi-
counsel to assess a
requiring defense
assessment
in addition to the usual
punishment
as to
ble bias
guilt.
Increasing this burden on
possible
as to
bias
moreover,
right,”
is the
of defendant’s “substantial
exercise
death-qualification process itself induces bias
that the
fact
finding
potential jurors
presuppose
guilt by requiring
indeed,
(II), supra,
is,
guilty.
Bey
See State
that defendant
Ramseur,
(Handler, J., dissenting); State v.
at 133-40
N.J.
Thus,
J.,
(Handler,
dissenting).
at 428-35
supra, 106 N.J.
“spend” a
of when to
counsel’s normal calculation
defense
guilt
heavily
possible
as to
is
challenge for
bias
peremptory
punishment and
possible bias as to
by concerns of
encumbered
guilt.
that fosters bias as to
severely
process
skewed
assessing
the court’s
(II),
whether
Bey
As I observed
harmless, a defendant’s
for cause is
refusal to excuse
relevant
peremptory challenges is a
to exhaust his
failure
case, and, given
singularly
ordinary
in the
consideration
challenges, such an error
important
peremptory
function
But there is
at 145-46.
Supra,
reversible.
N.J.
could be
principle
capital-murder case.
nothing ordinary about a
*64
that
requires,
“death is different”
if anything,
punctilious
more
review,
appellate
if not an
of
enhanced standard
review with a
stricter
reversibility.
standard for
compunction
Whatever
and
might experience
hesitation the Court
characterizing
an error
ordinary
as reversible in an
assuredly
criminal case
cannot
gravity
serve to dilute the
identical error
a case where
See,
the death penalty
Zola,
has resulted.
e.g.,
v.
supra,
State
(Handler, J.,
Thus, I believe that this in capital Court should hold that cases, where challenge an erroneous denial of a for cause prompts a defendant to dismiss a peremptorily, and the ultimately defendant supply peremptory exhausts his chal- lenges prior completion jury to the selection is denied an peremptory challenge, additional state constitutional standards process principles due compel fundamental fairness alone, Accordingly, ground reversal. on this defendant’s con- viction should be reversed and the cause remanded for a new trial.
III. court, Defendant also contends that the trial over defendant’s repeated objections, permitted the trial to become infected with highly prejudicial, inflammatory testimony and statements that guilt focused on defendant’s or innocence but the vic- on improperly tim’s character. Defendant asserts court admitted, “background,” testimony relating emotion-laden life, personal prosecu- victim’s and improperly allowed the testimony tor to unduly prejudicial comment in an result, contends, invited, manner. As a he both guilt penalty phases, to reach a verdict based on culpability. rather than the defendant’s victim’s virtues reversing guilt it states that both Court because grounds,” phases other it need not determine “on “unjust led an prosecutor’s that the behavior likelihood miscon- my opinion, prosecutor’s verdict.” Ante 446. evidence, presentation and consideration of duct tainted the *65 jury’s misconduct seriously and affected the deliberations. The errors, would, require apart so it from other egregious, was as defendant’s conviction well as death sentence. reversal of sought provide background The certain facts prosecution purse and to that the retrieved from the Delaware establish introduction, This to the over belonged River victim. led information, as the objections, of extraneous such defendant’s plans variety of marriage and her a victim’s involvement empha- prosecutor repeatedly The church-related activities. closing during opening sized facts her and statements these phases both of the trial. mistrial, contending
Thp a that evidence defendant moved for prosecutorial guilt penalty phas- comments both the background plans her concerning es the victim’s future sufficiently genuinely in dis- probative any facts were not jury. pute presented solely to inflame the The motion and were denied, ruling “background” trial informa- was court tion was admissible. defendant, concluding seemingly agrees with the Court of such evidence “neither prosecutor’s
that the treatment was harmless,” and, further, “[tjhis conduct appropriate nor advocacy prosecutor’s cannot overzealous attributed to intentional, litigation, plan to in the heat of to an calculated but jury induce based on the victim’s virtuous reach a verdict however, reasoning, Ante at 447.3 The Court’s character.” made buttresses 3A of some the remarks prosecutor sample conclusion, Court’s viz: an takes ironic twist it when thereafter refuses decide that prosecutorial this blatant sufficiently preju- misconduct dicial a to warrant reversal of guilt defendant’s conviction of death sentence. v. Maryland, Booth 496, U.S. 107 S.Ct. 2529, (1987), the Supreme
L.Ed.2d 440
Court addressed the constitu
tionality
introducing
victim-impact
statement
at
sen
tencing phase
capital
aof
murder
trial. The statement
con
description
tained a
of the effect of the murder on the victim’s
family
personal
victims,”
well as “the
characteristics
of the
i.e., they were a
couple,”
“close
“married for fifty-three years,”
“loving parents
Id. at-n.
grandparents.”
3,
107 S.Ct.
at 2531 n.
We thus the contention that the or absence of emotional distress family, personal characteristics, proper victim’s or the victim’s are case, sentencing at-, capital 107 S. considerations in [Id. Ct. *66 L.Ed.2d at 450-51.] Beverly beautiful, educated, Bright, Mitchell had so much to for. live religious, Beverly taught a member her of church choir. school in the system, taught special working Trenton school She She education. was part-time receptionist aas at the Care Bellevue Center to earn some extra see, money. Beverly very day, You was due to be married in 1983. That 30, 1982, Beverly day spent Beverly December her and mother the before Center, they spent day looking went to work at the Bellevue Care the for apartment, apartment Beverly an an that and her husband-to-be would Beverly Beverly share when started her new life. looked forward to 1983 joy, hope, promise. with such such such But it not was to be. defendant, Williams, changed changed.it James Edward of all that. He brutally, savagely, permanently. unspeakable In a few moments of hor- ror, destroyed Beverly's the defendant all dreams. In a few moments terror, unimaginable destroyed Beverly’s plans. the defendant all In living nightmare, destroyed those few moments of a the defendant all of joy, hope, moments, promise. all that all that In those few he destroyed Beverly wedding day, Mitchell. She would never live to see her [Ante 448.] at 140, Gathers, 295 369 S.E.2d Similarly, in State v. S.C. — 144, cert. Gathers, v. U.S. granted sub nom. South Carolina -, (1988), South Carolina the 109 S.Ct. L.Ed.2d “con prosecutorial remarks that Supreme Court concluded sentence be suggestion appellant deserved death veyed the registered and voter" religious man cause the victim was eighth the amendment.4 violated case, concerning prosecutor’s remarks the victim’s In this the nothing that would aid the and character contain personality As guilt or innocence. the jury determining in the defendant’s itself states: Court prejudicing not in unduly the statements could result likely only inflammatory confusing jury against in it over whether its delibera- defendant but also sterling is no of the victim. There tions be influenced character by should prejudice. The confusion and in a case such prosecutor’s place capital should have been stricken from the record were
remarks clearly improper disregard jury at them.” [Ante and the instructed to 452.] properly inflammatory dealing comparable, highly comments with found that the defend- by prosecutor, the Court Ramseur instruc- deprived of fair trial curative ant was not because objections to the comment. given following prompt tions were Koedatich, Likewise, supra, the at 322-23. State N.J. egregious could overcome ruled that curative instructions Court However, 325-26. here misconduct. 112 N.J. at prosecutorial indeed, trial given; court no curative instructions were overruling objections seemingly autho- consistently defendant’s rized, condone, prosecutor’s introduction of and if it did not over- only prejudice Not was on this evidence. comments opening remarks to the case, in this her prosecutor, 4Similarly, guilt for," to live stated that the victim had “so much trial, phase "religious, had choir," and that James Williams a member her church was goodness At Mitchell.” all the humanity Beverly "destroyed guilt that she would in the stated end of the State's case phase, prosecutor "just about the a few more moments talk if she did not take up be "remiss" case, and that *67 was the most in person who actually important person naked, did, to die as she Mitchell," that didn’t deserve "[s]he Beverly calling ravaged, agony, me, Jesus help to Jesus for Jesus help help. me.” by instructions, come neutralized curative it tangibly was rulings. Hence, reinforced the trial court’s in my opinion, it possible is not to conclude that right defendant’s to a fair trial preserved. tacitly acknowledges The Court this when it notes that the trial mistakenly court powers failed exercise its prevent prejudice. Nevertheless, undue at Ante 457. the Court refus- es to prosecutorial consider whether the misconduct in this case would be sufficient independently to warrant a reversal of defendant’s conviction as well as the death sentence. majority, self-righteousness, with a hint of reminds us
that “this Court has been neither indecisive nor hesitant to reverse a conviction rights where a defendant’s constitutional have been abridged as the of glaring, unequivocal result evi- prosecutorial misconduct,” dence emphasizing that this is “especially true in capital severity cases where the of the penalty requires nothing permitted to undermine the underlying objective of our justice task —to insure that Acknowledging done.” Ante at 452. that this is indeed case a “the prosecutor’s which clearly improper,” remarks were at ante the Court “strongly then does no more than prosecutors circumspect admonish ... to be in their zealous efforts to win convictions.” Ante 456.
Sadly, been Ramseur, we have this route before. State v. 322-23, supra, prosecutors atN.J. we admonished that we capital would not hesitate to reverse convictions based prosecutorial misconduct where conduct is egregious “so deprived case; that it a defendant of fair trial.” This is such depends culpability “fairness” of trial not on the of a defendant, for it guilty seems obvious that the most defendant unfair; rather, can trial have a that was trial fairness rest, cases, particularly capital must integrity on the of the procedures safeguarded put the trial. As Justice Clifford Koedatich, it in supra, hope avoiding State v. “I see little repitition deprivation of a fundamental constitutional
476 warning trial if do no more than ‘reiterate our right a fair we ’ may [prosecutorial] flow violations consequences ... that dire from J., (Clifford, dissenting). at A 232-33 .. ..” N.J. justice on should hortatory plateau decision is not the which life a defendant’s is at stake. come rest when begin with the in this case did misconduct Indeed, proceeding. refusing in phase, but infected the entire as misconduct in this case an recognize prosecutorial reversal, independent ground majority denigrates for such wrong signal. A entirely and an decision that misconduct sends primer prosecu- no no than this is than a for does more better pill tors; placebo it but for defend- public is a for a bitter ants. my conviction must be reversed opinion, the defendant’s prosecutorial appropriate an
for reasons of misconduct. Under review, (I), 112 at Bey N.J. 52-65 enhanced standard State J., concurring), likelihood (Handler, there was realistic had adverse influence on prosecutor an misconduct exclusively ability jury’s to consider deliberate admitted, warranting properly a reversal of the convic evidence Similarly, this Court’s tion and sentence. even under conven prosecutorial misconduct in a tional standard of review for (I), 93-95; case, capital Bey supra, State v. N.J. Rams eur, prosecutor's supra, 106 at 324 the misconduct re N.J. This quires such reversals. Court should follow its own dictate readily prejudice’’ find in Ramseur and “more attributable prosecutorial justification to reverse the convic misconduct tion.
IV. forth, respective I For the reasons set conclude improper errors refusal to excuse entailed resulting peremptory of all cause the defendant’s exhaustion relating to the challenges, prosecutorial misconduct personality, independent- of the victim's character evidence ly justify a reversal of the defendant’s murder I conviction. therefore only judgment concur in the of the Court.
For WILENTZ, reversal and remand —Chief Justice *69 CLIFFORD, HANDLER, POLLOCK, O’HERN, Justices GARIBALDI and STEIN—7.
Opposed—None.
IN SERTERIDES, THE MATTER OF LOUIS AN ATTORNEY AT LAW.
December 1988.